The main legal point established in the judgment is the application of different articles of the Limitation Act to a property dispute case, particularly the principles governing adverse possession and the applicability of Art. 144 and Art. 137.

P. N. MITRA, J. :- This is an appeal on behalf of the plaintiff under Cl. 15, Letters Patent from a judgment of Blank, J. in a suit for declaration of title to and recovery of khas possession of certain lands. The trial Court decreed the suit, but on appeal the learned Subordinate Judge, 2nd Court, Howrah, modified that decree by dismissing the plaintiffs claim for khas possession and giving him only a declaration of his title to the landlords interest in the suit lands. Our learned brother has affirmed that decision of the lower appellate Court.

2. The suit lands are C.S. Dag No. 2684, which is a tank, and C.S. Dag No. 2683, which an adjoining garden. These plots formed part of a maurashi mokarari jama which belonged to one Harish Chandra Mondal. Harigh executed a simple mortgage in respect of this jama in favour of the plaintiff. It was stated to us by the learned advocate for the appellant that this mortgage was made in 1921. In 1928, the plaintiff brought a suit upon this mortgage, being Title Suit No. 83 of 1928, and obtained a decree. In execution of that decree he purchased the mortgaged property on 14th April 1931 and 9th September 1931 he took delivery of possession through Court.

3. In the plaint the plaintiff made the case that since obtaining delivery of possession through Court he remained in khas possession until the defendants, dispossessed him on 20th Falgoon 1344 B.S. corresponding to 4th March 1938 on the allegation that they had a tenancy right in the suit lands. Plaintiff averred that the defendants never had any tenancy right in the lands and Harish had all along been in khas possession.

Upon these averments the plaintiff brought his suit on 18th September 1940 for declaration of his title by auction purchase and for khas possession.

4. The defendants filed their written statement on 12th December 1940. They put the plaintiff to proof of his title to the suit land, and they pleaded that they had a tenancy right in the suit lands under Harish since more than 50 years ago from the time of their grand father and the plaintiffs case of khas possession and dispossession in Falgoon 1344 was a false story. They said they had all along been in possession. They also pleaded limitation.

5. It appears that on 7th August 1941, an application supported by an affidavit was filed on behalf of the plaintiff praying that certain records might be called for. In this application it was stated that Harish had got an ejectment decree in Title suit No. 144 of 1928 in the 3rd Munsifs Court at Howrah against the predecessors-in-interest of the defendants and had taken possession of the property in suit through Court and thereby all right, title and interest of the defendants predecessors in property in suit had been extinguished. These allegations were materially divergent from the averments in the plaint, but no application was made for amendment of the plaint, which was allowed to remain as it was.

6. The suit came on for trial on 13th August 1942. The learned Munsif allowed the plaintiff to put in evidence the decree for ejectment obtained by Harish in Title Suit No. 144 of 1928 against the predecessors-in-interest of the defendants and the peons return to the writ of possession showing delivery of possession to Harish on 13th September 1928. The decree was an ex parte one and was dated 31st May 1928. The defendants objection to the reception of this evidence was overruled by the learned Munsif with the observation that the defendants had notice of the plaintiffs application of 7th August 1941, but they had not filed any additional written statement or counter-affidavit challenging the facts set out in the plaintiffs application. Upon this evidence supplemented by a little oral evidence the learned Munsif came to the conclusion that although the plaintiffs case that Harish had been in khas possession all along was untrue, the defendants tenancy had been put an end to by this ejectment decree and Harish had obtained khas pos