The right to sue for partition is maintainable only if the plaintiff is in actual or constructive possession of the properties, and the right to execute the decree for joint possession is barred by the statute of limitation.

JUDGMENT

Mitter, J. - This appeal has been preferred by the plaintiffs and is directed against an order of remand. Plaintiffs' case is that the defendants kept the plaintiffs out of possession of the lands in suit and the plaintiffs consequently had to bring a title suit for recovery of possession of the lands. In that suit plaintiffs got a declaration of title in respect of 10 annas 71/4 pies share. On appeal by the defendants the extent of the plaintiffs' share was reduced to 9 annas 10-23/28 pies and plaintiffs' decree for khas possession in respect of that share was confirmed in appeal by the decree, dated the 31st of May 1919. The plaintiffs asked the defendants to have the lands partitioned amicably and to give up possession of plaintiffs' share of the lands but the defendants refused to give up possession and have been exclusively possessing all the lands. It may be mentioned here that it does not appear that the plaintiff s made any attempt to execute the decree for recovery of joint possession through Court. They did not even obtain symbolical possession. The plaintiffs commenced the present suit to which this appeal relates for partition of the lands in suit by metes and bounds and pray that they may be put in possession of the lands which may fall to their share on partition. There was also a prayer for recovery of mesne profits. One of the issues raised in the trial Court was : Is the suit for khas possession barred by the law of limitation?

2. The Munsif held that the suit was not so barred as the previous title suit between the parties was decided in 1917 and the appeal was decided in 1919 and the present suit was instituted in the year 1925, i.e., within twelve years from the date of decision of the first suit. The Munsif granted a preliminary decree for partition and appointed a Commissioner to effect the partition of the jote into two allotments, one for plaintiffs' share and the other for Defendant No. 1's share, and directed that the plaintiffs would get khas possession of their lands. Wasilat was also granted. On appeal by the defendants, the lower appellate Court held that the plaintiffs' claim for khas possession was barred by Section 47 of the Civil Procedure Code, but allowed the plaintiff to convert the present suit into a proceeding in execution u/s 47, Clause (2) of the Code of Civil Procedure, subject to any objection as to limitation. But as there was no sufficient material on the record to decide the question of limitation he framed an issue en the point and remitted the case to the Court below for the trial of that issue. The issue which was framed by the lower appellate Court runs as follows:

If there is no bar of limitation to this suit being treated as a proceeding in execution.

3. The lower appellate Court further observed that:

as the finding of the lower Court on other points was not assailed and is not being disturbed in appeal, the suit will be decreed with costs if the issue is decided in plaintiffs' favour and will stand dismissed with costs if it is decided against them.

4. Against this order of remand an appeal has been preferred in this Court and it has been contended before us by the learned advocate for the appellant that the lower appellate Court is wrong in holding that Section 47 of the CPC bars the present suit and that it should have held that the decree in the previous suit between the parties having declared plaintiffs' title they must be deemed to be in constructive possession of the suit-lands and as they were in possession within twelve years of the suit they are entitled to a decree for partition by mates and bounds and to a decree for recovery of possession after partition.

5. We are unable to accept this contention for we think that the plaintiffs cannot now be heard to say that they are in constructive possession of the disputed lands after having alleged in the previous suit that they are dispossessed in 1320 B.S. and having succeeded in the previous suit in obtaining a d