JUDGMENT

Kisch, J - This is the defendant's appeal from the decree of the Subordinate Judge of Sultanpur dated 5th August 1931 reversing the decree of the Munsif of that place dated 20th April 1931. The sole question for determination in the appeal is one of limitation. On 19th April 1890 the father of the plaintiff executed a mortgage by conditional sale of his half share in a certain grove in favour of one Mata Badal. In the event of the mortgage debt not being repaid by 1299 Fasli, that is in 1892, the mortgage was to be considered a sale. The mortgage debt was not repaid within the stipulated time, but the mortgagee brought no suit for foreclosure. On 1st June 1896 the mortgagee executed a deed purporting to sell the absolute rights in the mortgaged property to one Bhawani Prasad, the father of the defendant-appellant. The vendee was put in possession in pursuance of this sale-deed and he and after his death the defendant have remained in possession ever since.

2. On 8th January 1931 the plaintiff-respondent Mahadeo, the son of the mortgagor, instituted the present suit against the sons of the mortgagee Mata Badal and Raghunandan for redemption of the mortgaged property. The suit was contested by Raghunandan inter alia on the ground that the suit was barred by limitation under Article 134, Schedule 1, Lim. Act.

3. Under Articel 134, Lim. Act, 1908, as it stood prior to the amendment introduced by Act 1 of 1929, the suit ought to have been brought within 12 years from the date when the sale became known to the plaintiff. Under Section 28 of the same Act, which was the same both before and after the amending Act, at the determination of the period of limitation provided in the Act for instituting a suit for possession of any property, the right to such property shall be extinguished. The trial Court held that the mortgagor's; right to redeem having been extinguished before the amendment of the Act it could not be revived by the amendment of the Act and also that the circumstances showed that the plaintiff and his. father were long ago aware of the transfer of the property to Bhawani Prasad.. The learned Munsif did not state in so-many words that they were aware of this; transfer more than 12 years before the institution of the suit, but it is clear that he means to imply that they were aware of this transfer from its inception, and as the plaintiff's own brother is the owner of the other half share of the grove and has been regularly dividing, the produce with Raghunandan, it would seem that the conclusion of the learned Munsif is a reasonable one. He accordingly dismissed the plaintiff's suit as barred by limitation.

4. The learned Subordinate Judge in a; judgment which I find some difficulty in following held that Raghunandan had failed to prove that the plaintiff came to know of the transfer of the mortgaged property more than 12 years before the institution of the suit, thus wrongly laying on the contesting defendant the initial burden of proving that the suit was within time. Clearly the plaintiff must take and sustain the burden of showing that his suit was within time. Neither in the plaint nor at any subsequent stage of the case has the plaintiff even fixed any date at which he alleges that he came to know of the transfer of the mortgaged property to Bhawani Prasad or Raghunandan. The learned Subordinate Judge has committed a further error in law in holding that Raghunan-dan's defence could not succeed because he mighthave satisfied himself that his transferor's title was that of a mortgagee and not of an absolute owner but had. failed to do so.

5. In a Full Bench decision of this Court Sri Ram v. Najibullah, AIR 1926 Oudh 547 it has been held that the question whether notice, actual or constructive, on the part of the transferee that the transferor held only mortgagee rights in the property transferred is wholly irrelevant for the purpose of Article 134, Lim. Act. Holding that the suit was governed by that article a