Nagendra Prasad Singh, J.

1. This second appeal is by defendant No. 2 against a judgment of the learned Additional Subordinate Judge decreeing the alternative relief of the plaintiffs respondents for repayment of Rs. 2,000 which the plaintiffs respondents had paid to the appellant as a consideration for transfer of a land measuring 26 acre.

2. The plaintiffs filed Title Suit No. 137 of 1960 alleging that plot No. 459 was the nakdi joat land of one Raghunath Sahai who had constructed a house thereon. The said Raghunath Sahai died leaving behind three sons-- Lachhmi Narain, Shambhu Narain (defendant No. 3) and Gouri Shankar (defendant No. 2). It is further the case of the plaintiffs that defendant No. 2 came in exclusive possession of the said plot as owner thereof and he, under a registered sale deed dated 27-9-55, transferred the said plot of land in favour of the plaintiffs for a consideration of Rs. 2,000. The plaintiffs also claimed that after the said purchase they came in possession of the plot in question but defendant No. 1 claiming the said plot under a fictitious hukumnama raised an unfounded dispute and a proceeding under Sec.144 of the Code of Criminal Procedure having been drawn, was decided against the plaintiffs. Ultimately the plaintiffs were dispossessed on 1-11-59 by defendant No. 1. On theabove allegations, the plaintiffs made a prayer for a decree for declaration of their title and recovery of possession. There was an alternative relief prayed for in the said plaint that in case there was anv difficulty in passing a decree for title and possession in favour of the plaintiffs then a decree for the aforesaid amount of Rs. 2,000 with interest, be passed in their (plaintiffs) favour.

3. Defendant No. 1 challenged the assertion of the plaintiffs on the question of title and possession. According to the said defendant, the plot in question had been recorded in name of Lachhmi Narain and Shambhu Narain. But after the last earthquake the plot in question came in possession of the maliks as the recorded tenants abandoned the same and defendant No. 1 took settlement of the said plot under a hukumnama dated 5th Jeth, 1349 fasli and since that day he was in possession of the same.

4. So far as defendant No. 2 is concerned, he, in his written statement, substantially supported the case of the plaintiffs.

5. The learned munsif, on a consideration of the evidence on record, came to the conclusion that the plaintiffs had failed to prove their subsisting title to and possession over, the suit land. On the question of alternative relief regarding refund of the consideration money, the learned munsif held that defendant No. 2 was liable to refund only if the plaintiffs had been dispossessed from the land in question by defendant No. 2 or any person claiming through him. The learned Munsif also held that the claim of the plaintiffs for refund was barred under Article 97 of the Limitation Act, 1908 (hereinafter to be referred to as the Act). And, on the aforesaid findings, the learned Munsif dismissed the suit of the plaintiffs.

6. On appeal by the plaintiffs, the learned Additional Subordinate Judge affirmed the finding of the learned Munsif on the question of title and possession i.e. the plaintiffs have failed to prove their subsisting title to, and possession over, the plot in question and that the maliks had come in possession and had settled the same in favour of defendant No. 1. On the question of refund of the consideration money, the learned Additional Subordinate Judge, however, held that, on the facts and in the circumstances of the case, the plaintiffs were entitled for refund of the consideration money, as their vendor, defendant No. 2, had neither any title to, nor he was in possession of the plot in question on the date of the execution of the sale deed. He also held that Article 116 of the Act was applicable and not Article 97 of the Act, as had been held by the learned Munsif. In the opinion of the learn