Judgment. - Ishar Singh defendant 1 mortgaged with possession for a sum of Rs. 2400 the house in dispute to Bohru Mal Mahajan by means of a registered deed dated 17-8-1928, Ex. D-2, and he mortgaged on 6-12-1933, a haveli for Rs. 3000 by means of Ex. D-1. Behari Lal, who is the son of Ishar Singh, brought a suit on 27-10-1945 for declaration to the effect that these mortgages were not binding on him and that an injunction may be issued to defendant 2, the mortgagee restraining him from interfering with the plaintiffs possession of the said property. It was nowhere alleged that the possession had been taken or if it had been taken when it had been taken. the defence inter alia was that the suit was barred by time. The trial Court held the suit to be barred by time and this finding was affirmed by the learned District Judge. The plaintiff has come up in appeal to this Court.

2. The plaintiff submits that the finding of the learned District Judge is wrong because he was less than twenty-one years of age when he brought the suit. The evidence which was produced by the plaintiff was of five witnesses including himself. P. W. 1, Nanak Chand prepared his horoscope but the horoscope was not produced in Court. Plaintiffs witnesses Nos. 2, 3 and 4 are old men of the village and they have variously stated that the age of the plaintiff on the date they were giving evidence was 21 or 22 years or it was 20 or 21 years. The statement of the plaintiff himself was that he was 20 or 22 years of age on the date he was giving evidence which was in 1947. The learned District Judge relied on a birth entry made in the school register, Ex. D. W. 3/1, and Mr. Pandit has submitted that the evidentiary value of this register is very little and that the learned District Judge has not considered his evidence with regard to age. The onus of proving that the plaintiff was less than 21 years of age on the date he filed the suit was on him and, in my opinion, on the evidence that he has led it is not possible to hold that he has discharged the onus. In my opinion, therefore, the learned District Judge rightly held that the plaintiff has not proved that he was twenty-one years of age or less on the date when he filed the suit.

3. The learned counsel then submitted that in any case the second alienation of 6-12-1933 would be within time on the date when he filed the suit. The article applicable according to the learned advocate is 126 of the Limitation Act which provides: The submission comes to this that the suit is for a declaration with a prayer for injunction to restrain the defendant from interfering with the plaintiffs possession and therefore he submits that Art. 126 applies and he relies on two judgments of the Lahore High Court in Gokha Ram v. Sham Lal, 3 Lah. 426 : (AIR (10) 1923 Lah. 268) and Dev Raj v. Shiv Ram, 25 I. C. 463 at p. 466 : (A.I.R. (1) 1914 Lah. 408). In the former case where a mortgage with possession had been effected by the father in favour of Rosha, it was held that a suit for mere declaration that the alienation would not affect the plaintiffs rights is not covered by Art. 126, Limitation Act but where the suit is for annulment of the sale and in fact the decree is also for the same, Art. 126 applies and not Art. 120. But whether this case is correctly decided or not it can have no application to the facts of the present case because the question has not been discussed as to whether this article applies in the case of alienation where no possession has been taken. In the second case all that the learned Judges said was that the phrase "set aside" in Art. 126 implies a prayer for immediate relief, and not for a mere declaration. That again, in my opinion, does not assist us in interpreting Art. 126 when applied to the present case.

4. In col. 3 of Art. 126 the words used are "when the alienee takes possession of the property". In my opinion, this article applies to those suits where the alienee has taken possession and has no applicat

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