JUDGMENT

Dunkley, J - This appeal must be allowed. By a registered deed of sale, dated 23rd May 1917, respondent 1, Mg Po Yin, and his wife transferred the land in suit to one Mg Kyi Nyo, and by a ?registered deed of sale, dated 18th February 1932, Mg Kyi Nyo in his turn transferred the land to the appellant. The respondents are brothers, the sons of one Mg San Hla. The appellant brought a suit against them in the Sub-divisional Court of Paan for possession of the land in suit, and was successful. This decision was reversed on appeal to the District Court of Thaton on the ground that the suit was barred by limitation.

2. The respondents admitted the sale of the land by Po Yin and his wife to Kyi Nyo, but alleged that it was a temporary transfer in consideration of Kyi Nyo paying of a decree which had been passed against their father San Hla, and that the amount paid by Kyi Nyo had been refunded to him, and therefore Kyi Nyo obtained no title to the land under this deed. It is now admitted that, so far as Po Yin is concerned, evidence of this alleged condition attached to the sale to Kyi Nyo was barred by the provisions of Section 92, evidence Act, but it is argued that it was open to the other two respondents to prove this condition by oral evidence. Be that as it may, the alleged temporary nature of the sale has not been proved. The deed of sale remains uncancelled in Kyi Nyo's possession, and only a single witness has supported Po Yin's statement that he refunded to Kyi Nyo the amount which the latter had had to pay in discharge of the decree against San Hla. It is further asserted that the land in question belonged to the respondent's father San Hla, who died in 1932, and that it has descended to them in equal shares as heirs of their father, and that Po Yin and his wife had no right to transfer it, and therefore at most the deed of sale in favour of Kyi Nyo operates to transfer Po Yin's share only. It is admitted that this family brought the land in suit under cultivation by clearing the jungle, and therefore there are no documents of title to the land, beyond the entries in the Bevenue Registers and the tax receipts. The appellant has established that the land was entered in Bevenue Begisters and assessed to revenue in the names of Po Yin and his wife from the year 1913 to the year 1917, where it was shown as sold to Kyi Nyo, and in subsequent years until 1928 Kyi Nyo's name appeared as owner. It has not been established that at any time San Hla's name appeared as owner, and, up to the time of the transfer to Kyi Nyo, Po Yin and his wife were clothed with all the available indicia of ownership. San Hla died in August 1932, and he was well aware of the transfer to Kyi Nyo, but he never disputed it. Moreover Po Yin himself has stated in evidence that his father was actually present when he executed the sale deed in favour of Kyi, Nyo, and consequently San Hla would be estopped from denying the right of Po Yin to make the transfer. Hence respondents 2 and 3, who claim through San Hla, are also estopped, and the validity of the transfer of the whole land to Kyi Nyo is established.

3. In holding that the suit was barred by limitation, the learned District Judge held that Article 136, Schedule 1, Limitation Act, was applicable, as the purchase by the appellant was a purchase from a vendor who was out of possession of the property at the date of the sale. He held that Kyi Nyo never acquired possession of the land, and that therefore time began to run from the date of the sale deed of 1917. But possession contemplated by Art, 136 is not confined to actual occupation only; it also includes constructive possession. The expression "out of possession," as used in this article, implies that some person is in possession adversely to the vendor, some person holding in a character incompatible with the idea that ownership remained vested in the vendor. See Chintamani Pramanik v. Hriday Nath Kamila A.I.R. 1918 Cal. 68 and B. Venhayya v. Rama