The main legal point established in the judgment is that the plaintiff must prove his possession within the limitation period and cannot change the case from actual possession to constructive possession in a second appeal.

JUDGMENT

Cuming, J. - The facts of the case out of which this appeal arises are as follows. There is a tract of land in the Sunder buns of which defendant 1 took a lease from the Government and in 1901 the plaintiff's vendor obtained a lease of some 100 bighas of this land from defendant 1. In 1906 the lease which had been granted to the plaintiff's vendor's lessor was cancelled by the Government and a fresh lease was granted on the 16th August 1907. The plaintiff purchased the lease of Kalachand in the year 1910. It was his case in the first Court that he was in possession of his land by cutting wood and exercising other acts of possession till he was dispossessed by defendants 2 and 3 in 1914. Defendants 4 and 5, the purchasers of the interests of defendants 2 and 3, contested the, suit. Their main ground was that the suit was barred by limitation both general and special and that the plaintiff had acquired no title to the land in suit by his purchase which was not a genuine transaction, that ever if the alleged purchase was a genuine one, the identity of the land in suit could not be established in the locale and that the plaintiff's vendor's title was extinguished when the lease to defendant 1 was cancelled in 1906.

2. A number of issues were framed and the first Court decided the case in favour of the plaintiff and decreed the suit with costs. On appeal to the District Court the learned District Judge held that the plaintiff's case was barred by limitation,, and hence he allowed the appeal and dismissed the suit.

3. The plaintiff has appealed to this Court. He has contended that the suit was not barred by limitation. The case which he-now seeks to make to avoid the bar of limitation is that the dispossession took place in 1908 when defendant 1 granted a lease to defendants 2 and 3. Up to that time he was in constructive possession, because he had title to the land and the land was virgin jungle and no one else was in possession. As there were no acts of possession exercised on the land possession is to be considered as following the title.

4. The main difficulty that I have in accepting this contention of the learned advocate for the appellant is that this was not the case which the appellant made in his plaint. His case in his plaint was that both he and his vendor were in actual possession. No case of constructive possession was suggested by him in his plaint and the defendants had not to meet any case of constructive possession. The case which they had to meet was that of actual possession and dispossession. The plaintiff was suing in ejectment and therefore he must prove his possession within 12 years of the date of the suit. As I have pointed out the case he made in his plaint was that he had been dispossessed in the year 1914. Having made in his plaint a definite case that he was in actual possession and that his vendor was also in actual possession of the land in suit, it is not open to him now in second appeal to turn round and to avoid the bar of limitation put forward an entirely different case based on constructive possession. To succeed in the case which he now puts forward he would have to prove that no one else exercised any act of possession over the land and that hence the possession must be held to follow the title: the defendants in that case would have this definite case to meet and their evidence would have been directed towards the meeting of such a case. As I have already said that was not the case made in the Court of first instance. As Mr. Justice Chatterjea points out in the case of Rakhal Chandra Ghose and Others Vs. Durga Das Samanta and Another, AIR 1922 Cal 557 such a course is not open to the plaintiff where he puts forward a definite case of actual possession and dispossession : it is not open to him, when that case fails, to turn round and put forward a case of constructive possession which obviously depends upon entirely different facts which, if the defendants had to meet, they would, doubtl