1. This appeal has been placed for hearing before me on the difference of opinion between Nagendra Prasad Singh, J. and S.Ali Ahmad, J. Nagendra Prasad Singh, J. has allowed the appeal, set aside the judgment and decree passed by the Second Additional District Judge, Gaya, (the court of appeal below) and remitted the case back to be heard afresh in accordance with law in the light of the observations made by him. S.Ali Ahmad, J. has dismissed the appeal. Nagendra Prasad Singh, J. has held that it appears from the judgment of the court of appeal below that after having held that the plaintiff did not acquire any title by virtue of the court sale it has purported to consider the question of possession saying that the plaintiff having failed to prove title, now it was to be considered whether she acquired title by adverse possession; and held :-

"In my view once the finding on the question of title is held to be invalid then the judgment of the Court of appeal below cannot be sustained on the grounds that there is a finding that the plaintiff never came in possession after the court sale and the defendants have continued in possession over the disputed Land."

Proceeding further to consider as to whether the court of appeal below considered all the materials and circumstances which had been referred to by the trial court while reversing its findings on the question of possession, Nagendra Prasad Singh, J. has noticed.

"The trial court has discussed this question in detail and has recorded a categorical finding that the defence of defendant 9 was incorrect and, perhaps, he was in collusion with the other defendants. The appellate court has reversed that part of the finding in few lines in para 10 of its judgment by saying that defendant 9 as D. W. 1 has denied his possession over the plots and had also filed an affidavit (Ext.A). On the question of possession the appellate court has referred to some documents including rent receipts, but has not referred to other materials which are relevant for the consideration of the question discussed in the judgment of the trial court."

S.Ali Ahmad, J. on the other hand has recorded in his judgment as extracted.

"One of the defence advanced by the contesting defendants was that the mortgage, mortgage suit and delivery of possession were all collusive and, as such, conveyed no title to the plaintiff. In case, the defendants want to succeed on the point, they undoubtedly had to prove the same but no definite finding has been recorded by the court of appeal below on that issue. It is, therefore, not possible to unsuit the plaintiff on that account. The matter however, does not rest there. The plaintiff claimed to have come in possession in the year 1943 on the basis of the delivery of possession. The defence on that point was that the plaintiff never came in possession. The suit giving rise to this appeal was filed in the year 1967. In case the defendants case was true that the plaintiff never came in possession since 1943, then the period of 12 years had already lapsed prior to the institution of the suit and the fact that the suit was filed in the year 1967 will not shift the onus on the defendants to prove that they acquired title by remaining in adverse possession for 12 years. By virtue of Ss.29 and 31 of the Limitation Act, the suit will have to be dismissed if it is found that the plaintiff from the year 1943 did not come in possession for 12 years. This aspect has been considered by the lower appellate court in paras 10 and 11 of the judgment. The finding, therefore, that the plaintiff never came in possession of the suit land is a pure finding of fact and I do not see my way to interfere with that."

S.Ali Ahmad, J. has further said:-

"Admittedly, the new Limitation Act came into force on 1-1-1964 and the suit was filed in the year 1967. Therefore, apparently, Art. 65 may be attracted. But S.31 of the new Limitation Act provides that nothing in this Act shall enable any suit, appe