JUDGMENT

Sulaiman, J. - This is a plaintiff's, appeal arising out of a suit for recovery of possession of immovable property and mesne profits. The plaintiff also offered to let the defendants Nos. 1 and 2 redeem him if they chose to do so.

2. The facts of this case are as follows :--On the 5th of July, 1889, a mortgage-deed was executed by one Dharamjit ostensibly in favour of Tursi It is not now disputed that this Tursi was benamidar for Sobha Earn, the real mortgagee. On the 27th of July, 1896, Dharamjit sold the equity of redemption in the mortgaged property to Ganga Earn and Dhanwant. It may be stated that although the sale-deed stood in the name of these transferees, the mutation of names was subsequently effected in favour of the sons of these persons. It is not necessary at this stage to state all the circumstances under which the mutation of names was effected in that way, as that question has not been gone into by the court below.

3. On the 20th of December, 1909, Sobha Ram, the real mortgagee, brought a suit for sale against the mortgagor, Dharamjit, as well as his transferees, Ganga Ram and Dhanwant. He also impleaded a prior mortgagee, Badri. The sons of Ganga Ram and Dhanwant were, however, not impleaded. It appears from the judgment in that case that the position taken up in defence by Ganga Ram and Dhanwant was to put the plaintiff to strict proof of his allegations. It does not appear that there was any suggestion thrown out that the suit was defective on account of any non-joinder. The suit terminated in a decree for sale on the 6th of June, 1910, and the appeal preferred to the High Court by Ganga Ram and Dhanwant was also ultimately dismissed. On the 20th of August, 1913, in execution of the mortgage decree for sale, the property was put up for sale and purchased by the decree-holder Sobha Ram himself. The sale was confirmed and the sale certificate was granted to the decree-holder purchaser later on. The record of that proceeding is not before us, but it appears that after the sale had been confirmed, the auction-purchaser put in an application,- which, however, is not on the record, purporting to be under Order XXI, Rule 95. In this he impleaded Tursi Ram and Chhedu, the sons of Ganga Ram and Dhanwant, judgment-debtors, alleging that these latter persons were in possession of the property on behalf of their respective fathers. Objections were raised by the sons mainly on the ground that they were in possession of the property on their own account and were holding it under some sort of partition with their fathers. The learned Subordinate Judge, who had this application before him, came to the conclusion that Tursi Ram and Chhedu were in possession on their own account and not on behalf of the judgment debtors. He accordingly dismissed the application on the 3rd of July, 1914.

4. The plaintiff made an attempt to appeal from that order but his appeal was dismissed on the technical ground that no appeal lay from such an order.

5. After the expiry of more than one year from the date of the order passed by the Subordinate Judge, the present suit has been instituted by Sobha Ram for recovery of possession against Tursi and Chhedu as well as other defendants. The claim was principally contested by these two persons and the main defence put forward on their behalf consisted of a plea that the order passed on the 3rd of July, 1914, was an order under Order XXI, Rule 99, and that, therefore, the present suit was barred by Article 11A of the Limitation Act, as it had been brought more than one year after that order. It was also pleaded that the defendants were holding possession of this property under a private partition on their own account, and the claim was also barred by the 12 years' rule of limitation.

6. The learned Subordinate Judge did not record evidence in this case but took down the statements of the pleaders for the parties. These statements are printed at pp. 18 and 19 of the paper book. The pleader for the