The main legal point established in the judgment is the binding nature of a prior decree on the present defendants and the effect of delivery of possession in execution on limitation.

Ananthakrishna Ayyar, J.

1. On the allegations that the plaintiffs father obtained a decree against the father of the present defendants and also against defendant 3, in O.S. No. 1180 of 1904, for the suit lands, and took delivery thereof on 27th September 1908, through Court in execution of the decree, and that in 1909 the defendants trespassed upon about 2 acres of the said lands and in 1917 upon about 5 more acres and that they were also attempting to disturb the plaintiffs enjoyment of the lands in B schedule, the plaintiffs instituted the original suit for possession of the A schedule lands, and for an injunction and if necessary also possession of the B schedule lands, attached to the plaint, with mesne profits.

2. Of defendants 1, 2 and 3, who are brothers, defendant 3 disclaimed all interest in the suit lands, and defendant 2 was subsequently exonerated by the plaintiffs, and defendant 1, the really contesting defendant in the suit alleged that the lands belonged to the defendants, that in the partition which took place 25 years prior to the suit most of the suit lands fell to defendant 1s share that after the death of their father the defendants were in possession of his properties also, that the decree in the prior suit was not binding on the defendants, that the plaintiffs father never took actual delivery of the plaint lands in execution of the prior decree, and that the suit was barred by limitation. There was also a further plea raised in the additional written statement of defendant 1 that the suit for injunction in respect of B schedule properties was not maintainable as the plaintiffs were not in possession of the same.

3. Six issues were framed by the District Munsif, issue 1 raising the question of alleged trespass and also limitation; issue 2, raised the question of partition; issue 3 raised the question whether defendants 1 and 2 were precluded from putting forward the pleas by reason of the decision in O.S. No. 1180 of 1904; issue 4 raised the question whether the plaintiff was entitled to an injunction in respect of B schedule lands; and issue 5 was whether defendants 1 and 2 has acquired title by reason of adverse possession of both warams as contended by them; and issue 6 raised the question of the relief to which the plaintiffs were entitled.

4. The District Munsif found that the partition set up by the defendants was not proved, that the trespass alleged by the plaintiff was proved, and that the suit was not barred by limitation as it was filed within 12 years from the date of the delivery of the lands to the plaintiffs father in execution of the decree in the prior suit. The plaintiffs were given a decree for the possession of the suit lands (both A and B schedules) with mesne profits.

5. Defendant 1 preferred an appeal from the District Munsifs decree. The learned Additional Subordinate Judge reversed the decision of the District Munsif and dismissed the suit. The plaintiffs have preferred the present second appeal. The learned Additional Subordinate Judge upheld the decree of the District Munsif that the partition set up by the defendants had not been proved. That is a finding of fact and must be accepted. As I understand the learned Additional Subordinate Judges judgment, he reversed the decision of the 1st Court by reason of his findings upon 2 points viz., that defendants 1 and 2 were not bound by the decree in the prior suit, and that plaintiffs had no possession within 12 years prior to the present suit. It is therefore necessary to consider those two points at some length.

6. The prior suit was instituted by the plaintiffs father against the defendants father (Korattayyan) who was defendant 82 in the prior suit, and the present defendant 3 who was defendant 83 in the prior suit. The defendants father is said to have been very old at the time, and defendant 3, the next senior most male member of the family and the eldest son of Korattayyan, was also a party to the suit. The defendants fathe