( 1. ) THE plaintiff Mst. Gitabai filed this appeal against the reversing decree of the lower appeal Court by which her suit under Order 21, Rule 103, C. P. C. . for declaration of her title to occupancy plot khasra No. 73, area 5-13 acres, of village Ner in Burhanpur tahsil was dismissed. Mst. Gitabai died during the pendency of this appeal and her legal representatives were, therefore, brought on record.

( 2. ) DHIRAJLAL, a Gujrati Bania, held the disputed plot as an occupancy tenant. One Mst. Bhimabai claimed to be his widow, although the lower Courts have found that she was only his concubine. Dhirajlal had leased out the disputed plot to Chindhu (defendant 4) for 4 years, from 1948-49 to 1951-52. Dhirajlal died on 4th October, 1948 leaving behind him surviving Mst. Bhimabai a sister Mst. Gitabai, (plaintiff), a pre deceased sisters son Kishandas (defendant 2) and his son Nalinikant (defendant 1 ). On 3rd March 1952, Mst. Gitabai leased out the disputed plot to Daulat (defendant 3) for one year. Thereafter, on 9th July 1952, Mst. Bhimabai executed a gift deed in respect of that plot in favour of Kishandas.

( 3. ) MST. Gitabai filed Civil Suit No. 73-A of 1954 for arrears of sub-rent and possession against Daulat on the averment that he was allowed to continue the lease for 1953-54. Chindhu was also impleaded as a defendant in that suit, which ended in a compromise decree for possession in favour of Mst. Gitabai. Subsequently, Mst. Gitabai filed an application under Order 21, Rule 97, C. P. (X alleging that Nalinikant had obstructed delivery of possession. That application was dismissed on the ground that Nalinikant was bona fide in possession on his own behalf. Thereupon Mst. Gitabai launched the suit out of which this appeal arises.

( 4. ) MST. Gitabai claimed to be entitled to the disputed plot as the sole surviving sister and heir of Dhirajlal. Only Nalinikant and Kishandas resisted the claim. According to them, Mst. Bhimabai, being the widow of Dhirajlal, was rightfully entitled to the plot. She made a gift of the plot to Kishandas and thereby conveyed to him a valid title. In any event, Mst. Bhimabai and Kishandas were in adverse possession of the plot for more than 3 years next before the suit and had thereby perfected their title to it. Finally, in the circumstances of the case, a suit for mere declaration of title purporting to be one under Order 21, Rule 103, C. P. C. , is incompetent.

( 5. ) BOTH the Courts below concurrently found in favour of the plaintiff with one exception. While the Court of first instance held that the claim was not barred by time, the lower appeal Court took the view that Mst. Bhimabai had, to the knowledge of Mst. Gitabai, intercepted the rent due from Chindhu right from 1948-49 and had thereby not only extinguished the title of Mst. Gitabai but had also herself become a full-fledged tenant or the disputed plot even before she gifted it to Kishandas on 9th July, 1952.

( 6. ) THE main question for consideration is whether the lower Courts view on the question of limitation is correct. The claim to the disputed occupancy plot is evidently governed by Article 1 of the Second Schedule to the Central Provinces Tenancy Act, 1920. Under that provision a tenant who has been dispossessed or excluded from possession has to bring his suit for possession within 3 years. In the lower appeal Court, as in this Court, the learned counsel for the respondents 1 and 2 strongly relied upon Kalimaddin Mea v. Eakutennesa Bibi, AIR 1940 Gal 347, for the view that, when land is in possession of tenants, the plaintiff must show, in order to establish adverse possession, that he intercepted rents payable by the tenants for the requisite period. In that case, the principle was accepted, without any discussion as good law and it was held that it was not attracted by the facts of the case. In other words, the decision does not rest on that principle which did not apply to the facts found in that case. In Murlidh