A transferee of a portion of a joint family dwelling house, being a stranger to the family, is not entitled to joint possession of the same or other common or part enjoyment of the house under Section 44 of the Transfer of Property Act, 1882. His remedy is to file a suit for partition to carve out his interest. Such a suit for partition is essentially one for possession of immovable property or an interest therein and the period of limitation for it is 12 years from the date of his sale.

S. K. RAY, J.

( 1 ) THIS second appeal is by the defendants 1 to 3 from the reversing decision of the lower appellate Court and arises out of a suit filed by the plaintiff for declaration of title and for recovery of possession of the suit land which comprised of 3 decimals out of 16 decimals comprised in Sabaka plot No. 10 appertaining to sabaka Khata No. 51 which respectively correspond to Hal Plot No, 8 in Hal. Khata no. 7 of Mouza Jatioatna.

( 2 ) THE case of the plaintiff is that the suit land originally belonged to one Duti padhan. His widow for herself and as guardian of a minor son together with a major son sold the suit land to one Chaitan Roy under a sale deed dated 16-71940 (Ex. 9 ). The letter's son sold the same along with other disputed land to one dhani Jena on 15-7-1957 (Ex. 6 ). This Dhani Jena sold the same to the plaintiff on 24-1-1961 (Ex. 51. Subseauent to this purchase a Proceeding under Section 145 criminal P. C. commenced with regard to the suit land between the plaintiff and defendants which terminated in favour of the defendants that is to say the suit land was declared to be in possession of the defendants on the date of the preliminary order. Prior to the finalisation of the proceeding under Section 145 criminal P. C. , the present suit has been instituted for the aforesaid relief on 14-8196o.

( 3 ) THE defendants-appellants are respectively the widow son and daughter of the deceased son of the original owner Duti Padhan. The suit land is a part and parcel of the homestead of the defendants. Their main defence is, as appears from paragraphs 3 to 8, 10 and 11 of their written statement, that they have been in possession of the suit land as a Part of their homestead exclusively and in their own right ever since the sale transactions commencing from 1940 onwards. Though they have not used the expression 'adverse possession' in their written statement it is obviously indicated that notwithstanding transfer of title successively to Chaitan. Dhani and the plaintiff their absolute and exclusive possession had remained uninterrupted.

( 4 ) THE trial court dismissed the suit on a finding that the suit land has always been possessed by defendants as a part of their homestead, and neither the plaintiff nor his predecessors-in-interest were ever in possession of the same at any time, since the first of the aforesaid series of sale transaction took place in 1940 till the date of the suit and Chaitan Roy having failed to sue for possession within 12 years of his purchase lost title and sub-sequent purchasers including the plaintiff, therefore acquired no title.

( 5 ) THE lower appellate Court, however, decreed the suit even though he concurred in the finding of the trial Court as to the absence of actual physical pos-session of the original purchaser or his successors-in-interest including the plaintiff. He seems to have entertained the opinion that since the defendants did not expressly set up a plea of acquisition of title by adverse possession and since there were a series of the sale deeds beginning from 1940 till 1961 which were acted upon the plaintiff's title cannot be held to have been extinguished.

( 6 ) BASING on the concurrent finding of the courts below that neither Chaitan Roy nor the subseauent purchasers including the plaintiff were in actual possession of the suit land it is contended that the first purchaser Chaitan Roy having omitted to sue to recover possession of the suit land for more than 12 years on the footing of his title acquired in 1940, lost his title to the suit land. So he could not convey any title to his vendee in the year 1957, and, accordingly, no title could be transmitted to the plaintiff in the year 1961. The title if any which had been acquired under the sale of 1940 (Ex. 9) is extinguished by the operation of Section 28 of the limitation Act 1908. Secondly it is contended that on a reasonable construction of paragraphs 3 to 8, 10 and 11 of the written statement it must