1. The question that arises for determination in this case is as to whether or not the possession of a proposed vendee under an agreement to sell becomes adverse from the date of the execution of the agreement in the event of a sale deed not being executed and the remedy of specific performance becoming time-barred. The question posed above is undoubtedly a sub­stantial question of law and is indeed a vexed one and there does not appear to be any authority directly in point which has discussed all the aspects at issue. The facts giving rise to this revision may be summarised as follows.

2. The plaintiffs father, Ganga Bishno, is said to have exe­cuted a contract for sale in favour of Mst. Narain Devi wife of the defendant on 26th Har, 2009 (Bikrami) == 17-7-1952. The agreement was in respect of 7 marlas of land comprised in Khasra No. 1716 min situate in Najrar, district Bhadarwah, whose possession was delivered to the prospective vendee under the agreement. It was stipulated in the agreement that Ganga Bishno would execute a proper sale deed in favour of Mst. Narain Devi within three years of the execution of the agree­ment failing which it will be open to the proposed vendees to file a suit for specific performance. It was also the admitted case of the parties that the entire consideration money of Rs. 250 was received by the proposed vendor in two installments: Rs. 150 at the time of the execution of the agreement and the balance of Rs. 100 on 20th Bhadon, 2009 = 14-9-1952. Thereafter no sale deed was executed by the plaintiffs father nor did the defendant file any suit for specific performance and allowed the suit to become time-barred. The defendants started cons­tructing some sort of a structure on the land in dispute which was resisted by the plaintiffs who filed the present suit for possession on the ground that the land was the ancestral pro­perty and had been sold by the plaintiffs father during their minority without any legal necessity and by perpetrating fraud.

3. The suit was resisted by the defendants mainly on the ground that the defendants having been in possession of the property for more than 12 years since the execution of the agreement to sell, they acquired title by adverse possession and any right which the plaintiffs had was extinguished. In view of the pleadings of the parties the trial Court of the Sub-Judge, Bhadarwah framed a preliminary issue which was as follows: -

"Whether the suit was within time." OPD.

4. The learned Judge, after taking evidence of the parties came to the conclusion that as the possession of the defendants was purely permissive, the question of adverse possession did not arise and the suit was therefore within time. He directed the other issues to be struck in this case. This order was passed on 24-6-1968. It is against this order that the defendants-petitioners came up to this Court in revision on the ground that the preliminary issue was wrongly decided by the Sub-Judge. The learned Sub-Judge based his decision mainly on an un-reported Division Bench decision of this Court in civil second appeal No. 49 of 2005-Sohnun & another V. Raman & others- decided can 23-3-1949 by Wazir C. J. and Masud Hasan J. The matter was heard by Jaswant Singh J. sitting singly who was of the view that as there was a serious conflict of authority on the question of law involved, the case be referred to a Full Bench.

5. Mr. Kotwal appearing for the petitioners submitted that the view of the learned Sub-Judge was legally erroneous and was contrary to the weight of authorities and should therefore be set aside. He relied on a Division Bench decision of the Calcutta High Court in Biraimohni Dass V. Sarla Devi. AIR 1937 Cal. 88. We have gone through this case and we find that though presumably it supports the contention of the petitioners, yet it is clearly distinguishable on two grounds. In the first place their Lordships found as a fact that no agreement to sell was proved to have been executed in tha

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