The relevance of the question of possession and the entitlement of the defendant to a finding on the pleadings raised by him in a property dispute.

Kinkhede, A J C—Two points are raised in this appeal: (1) that the portion alleged by plaintiff to be his was not proved to be his, but was the defendant's property, and (2) that at any rate it had become his by prescriptive title under Section 28, Lim. Act, long before the plaintiff took back forcible possession thereof from defendant-appellant on 5th July 1924.

2. As regards the first point: I do not think the decision of the lower appellate Court is open to challenge in second appeal. It is based on evidence proper for consideration, namely, the Record-of-Rights entries of 1912 and the other documentary evidence, as also oral evidence on record. I, therefore, decline to reconsider that finding.

3. As to the second point: the lower appellate Court does not seem to have at all considered it. It thought that the question of 12 years possession was immaterial as the plaintiff's title was proved and he was admittedly in possession within 12 years of the suit (i. e. since 5th July 1924). The defendant's contention was that even prior to 5th July 1924 he was in adverse possession of the portion in dispute for more than 12 years and that by such possession he acquired a prescriptive title as against the plaintiff, and that if after the plaintiff's title was thus extinguished under Section 28, Lim. Act, he (plaintiff) managed to regain possession extra-judicially, that possession could not be treated as owner's possession, and that defendant would be entitled to be replaced into possession. The argument, in short, is that ''there is no remitter to a right for which the party had no remedy by action at all.'' In other words an owner cannot regain possession extra-judicially after lapse of the period of limitation prescribed for a suit to recover possession. There is much force in this contention and though none were cited at the Bar, decided cases could be found to support it. I have been able to lay my hands on the following cases: In Bindraban Chandur Roy v. Tarachand Bundopadhya, 11 B.L.R. 237 Mr. Justice Markby said that it was an accepted doctrine in our Courts that if a party who has been 12 years out of possession, and whose suit is, therefore, barred, should again get into possession, he is not (to use an English phrase) remitted to his old title; our Courts adopting, as pointed out by Sir Lawrence Peel in Sibchunder Doss v. Sib Kissen Bonnerjee,1854 1 Boul 70 the English rule that ''there is no remitter to a right for which the party has no remedy by action at all.'' Dalip Rai v. Deoki Rai,1899 21 ILR(All) 204 and Lilabati v. Bishun,1907 6 CalLJ 621 which endorse the same view.

4. The lower appellate Court has treated the question of possession as irrelevant. But this appears to me to be wrong if the facts are as alleged by the defendant. The defendant is entitled to a finding on the pleadings raised by him. As this point is material for the right determination of the suit, the case must go back for a fresh decision so far as this point is concerned Had the point been regarded as relevant and considered, and even decided adversely to the defendant, the matter would have been different. But that is not what the Court did. Hence the necessity for remand.

5. I, therefore, remand the case for a proper decision of the case in the light of the above remarks. As the other findings are confirmed in this Court the lower appellate Court will not allow the parties to reopen points settled finally here. There will be no refund certificate. Other costs of this appeal shall be paid by the respondent. Costs in the Courts below will abide the event.