JUDGMENT

Bennet, J. - This is a second appeal by the defendant, Chanar Singh, son of Jai Ram. The respondent plaintiff is also Chanar Singh, son of Jit Singh. The second appeal is against the decision of the District Judge in appeal in favour of the plaintiff who had failed in the Court of first instance. The suit was for possession. On the first hearing I remanded an issue as follows:

Has the defendant Chanar Singh acquired the title of a mortgagee by adverse possession for over 12 years o the land in suit as a mortgagee?

2. Further evidence was admitted and the lower appellate Court has come to a further finding which is to the effect that the defendant has not acquired the title of a mortgagee by adverse possession. The case has now been reargued as to whether this finding is-correct in point of law on the facts found by the learned District Judge. These facts are as follows:

In 1871 there was litigation between one Jai Ram father of Ghanar Singh, the defendant in this case (now deceased) and two men named Khim Singh and Keshar Singh. This litigation "was settled by the execution of sulehnama or deed of compromise. On 9th October 1871, Jai Earn had sued these two men and the sulehnama shows that they admitted that they owed him Rs. 24 in addition to Rs. 42 due on a mortgage. They agreed that Jai Bam should remain in possession of the land mortgaged until they paid off this debt It is not stated in the sulehnama when this mortgage was executed (and no mortgage deed is forthcoming). The sulehnama did not show definitely what land was mortgaged; no specific plots are referred to; it merely showed that Jai Ram was in possession as a mortgagee of eight plots belonging to Khim Singh and Keshar Singh.

Khim Singh and Keshar Singh are said to have sold their rights in this land (as well as in other land) to one Lalmani, father of Amarnath. There is no evidence as to the date of sale. Neither Lalmani nor his father Amarnath ever obtained possession and in 1927, they sold this land willi other land to Chanar Singh, the plaintiff in the case.

Chanar Singh instituted partition proceedings and the land in suit was allotted to him in these proceedings in 1928. Jai Ram's son Ghanar Singh, was in possession of the land and refused to vacate it and the other Chanar (son of Jit Singh) accordingly sued for possession.

3. And also:

There appears to be no doubt that the appellant's family has been in possession since 1871 on the basis of the sulehnama referred to. No mortgage deed is forthcoming and it cannot therefore be said whether specific plots were mortgaged; all that can be said is that Khim Singh and Keshar Singh were not entitled to mortgage specific plots.

4. It is to be noted that the learned District Judge finds that the mortgage-deed was not produced and the sulehnama did not specifically show that the eight plots in question were mortgaged. He however finds that the sulehnama did show that Jai Ram was in possession as a mortgagee of eight plots belonging to Khin Singh and Keshar Singh. It appears to me that the finding of fact is sufficient to show that the mortgage was of the eight plots and the further question as to whether the mortgage-deed did or did not men-lion these specific numbers is not important. A point which appears to have influenced the District Judge is that the mortgage would be invalid. I asked learned Counsel for the plaintiff to show any provision of law which may make the mortgage invalid and he did not j refer to any provision of law. The general rule of law in the province is that a co-sharer in possession of a. particular plot as his khudkasht or as his sir has a right to mortgage the, plot. It is therefore for the plaintiff-respondent to show that a different rule prevails in Kumaun. All that the District Judge has referred to is a statement by Mr. Stowell in his Manual of Land Tenures of the Kumaun Division that the possession of specific ploty by a co-sharer would not entitle the co-sharer to remain in possession