JUDGMENT

Iqbal Ahmad, J. - This appeal must fail. It is well settled that possessory title is good against everybody except the true owner and in the case of a wrongful ouster, a plaintiff is entitled to succeed upon the strength of previous possession, if the defendant fails to prove a better title. Against a mere trespasser prior possession is itself a title inasmuch as possession raises a presumption of title. Possession in law is a subsisting right which the law protects and which can be enforced against any person who does not prove a better title. Accordingly in a suit for ejectment against a trespasser based on the plaintiff's title, if the plaintiff fails in proving title in himself but proves that he was in peaceful possession of the property in suit at the time of his wrongful ouster by the defendant, he is entitled to a decree for possession as against the trespasser. In short, in a suit for possession if the plaintiff proves that he was in peaceful possession at the time of dispossession by the defendant, the defendant can only resist the claim for possession on proving title in himself. If he fails to prove title, the plaintiff is entitled to a decree on the basis of his possessory title notwithstanding the fact that the plaintiff did not frame his suit as a suit u/s 9, Specific Relief Act, and did not sue the defendant within a period of six months from the date of his dispossession. A distinction is to be drawn in cases u/s 9, Specific Relief Act, and cases in which Courts grant the plaintiff a decree in suits filed after six months of the date of dispossession on the basis of the plaintiff's possessory title. In suits u/s 9, Specific Relief Act, a person who has been dispossessed is entitled to a decree for possession if he files a suit within six months of the date of dispossession, notwithstanding any other title that may be set up in such suit.

2. In suits u/s 9, Specific Relief Act the Court does not try the question of title and, therefore, the defendant cannot resist the plaintiff's suit on the ground of his being the rightful owner. No matter how good the title of the dispossesses, the person previously in possession is entitled to a decree for possession in suits u/s 9, Specific Relief Act, provided he brings the suit within six months of the date of his dispossession, That is not the case in suits for possession brought more than six months after the dispossession of the plaintiff. In such suits Courts have to try questions of title and, therefore, it is open to a defendant notwithstanding the previous possession of the plaintiff to resist the claim for possession by setting up and proving a title in himself. In other words, title is no defence in a suit u/s 9, Specific Relief Act, but affords a conclusive defence in other suits.

3. In the suit giving rise to the present appeal the plaintiff alleged that he was in possession as a mortgagee of half of the holding in dispute by virtue of a mortgage-deed executed by defendant 1 in favour of the plaintiff on the 12th July 1925, and that the defendants wrongfully dispossessed him from the holding. The suit was not resisted by defendant 1. Defendants 2 and 3 contested the suit on the ground that the holding in dispute belonged to them and that the mortgage in favour of the plaintiff was invalid. They further alleged that the plaintiff was never in possession and was never dispossessed by them.

4. A number of issues were framed by the trial Court. But that Court, without first ascertaining what the facts were and, without deciding the questions of fact that were necessary for determination of the suit, dismissed the suit on the ground that the plaintiff being a mortgagee of an occupancy holding, a transfer of which is prohibited by law, was not entitled to maintain the suit.

5. On appeal by the plaintiff the lower appellate Court, after pointing out that defendant 1 did not contest the suit nor did she set up the invalidity of the mortgage as a bar to the plaintif