JUDGMENT :- In this appeal on behalf of the plaintiffs, the particular question which arises for decision is whether under O. 21, R 100, Civil P.C., dispossession referred to therein must be in course of the execution proceedings or may be a subsequent event.

2. The plaintiffs brought the present suit out of which this appeal arises for a declaration of their eight annas share in a particular sub-tenure held by them under the Patnidar. The plaintiffs predecessor Gostha and pro forma defendant 5 Kedar after purchasing the eight annas share in the Patni sued Satish Adhikary who was then the owner of the sub-tenure in suit. That suit was decreed and in execution of this decree Gostha and Kedar became the auction- purchasers, the sale having taken place on 15th February 1924, and possession was delivered on 24th May 1924. The plaintiffs claimed in the present proceedings as the heirs of Gostha. Kedar who was the owner of the remaining eight annas share of the sub-tenure had borrowed money from defendant 3 Narendra and the latter obtained a decree for the realisation of the said amount. Defendant 3 purchased the entire sub-tenure on 16th August 1935 on the allegation that the entire sub-tenure belonged to Kedar alone. Defendant 3 obtained delivery of possession under O. 21, R. 95, Civil P.C., on 19th May 1936. Six months later the plaintiffs predecessor Gostha filed an application under O. 21, R. 100 of the Code in respect of this half share in the sub-tenure which belonged to him on the allegation that he had been dispossessed by defendant 3 on 6th November 1936, that is, long after the possession is alleged to have been delivered to defendant 3 in execution of the decree. That application was finally disposed of by the learned Subordinate Judge holding, (1) that on the allegation made by the petitioner that dispossession by the auction-purchaser was subsequent to the delivery of possession in execution of the decree, the provisions of O. 21, R. 100 of the Code were not attracted. Accordingly, the application was not maintainable; (2) that there was no reliable evidence to show that dispossession had taken place on 6th November 1936, as alleged by the petitioner and not on 19th May 1936, as evidenced by the writ of delivery of possession; and (3) that the petitioner had failed to show that he was in possession of any portion of the disputed properties on his own account. The application was accordingly dismissed. No suit as contemplated under O. 21, R. 103 of the Code was brought by Gostha or after him by his successor-in-interest within one year of 5th April 1937, that is, the date of disposal of the application purporting to have been under O. 21, R. 100 of the Code. The plaintiffs case is that they are entitled to bring this separate suit as they did in December 1941, as the application, which had been filed purporting to be under O. 21, R. 100 of the Code, was held to be not maintainable. In the present plaint, however, the date of dispossession as given is 29th Magh 1945 B. S. corresponding to 12th February 1939 and neither 19th May 1936, the date of the delivery of possession under O. 21, R. 95 of the Code to the defendant, nor 6th November 1936, as had been alleged in the application filed by Gostha under O. 21, R 100 of the Code. The plaintiffs contend that the present suit is not only maintainable in law but is not barred by limitation, as they have come within 12 years of the date of their dispossession.

3. Defendant 3, who was the purchaser in the money execution case in 1935 and had obtained delivery of possession in May 1936, conveyed the property to defendant 2. Defendant 1 is the wife of defendant 2. During the pendency of the suit, the zemindar Halwashiya had sued defendant 1 and the heirs of defendant 3 for rent of the sub-tenure without impleading the plaintiffs as parties and in execution of the decree the entire sub-tenure was purchased by defendant 4, Surendra on 18th August 1943. The plaintiffs alleged that the

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