JUDGMENT
1. These connected appeals arise out of a suit for possession of a house brought by Onkar Prasad, appellant in Second Appeal No. 432 of 1926 and the contesting respondent in Second Appeal No. 523 of 1926. The suit was decreed for possession of one-third of the house in dispute by the Court of first instance whose decree has been affirmed by the lower appellate Court, the learned Additional District Judge of Agra.
2. The house in dispute belonged to one Sukh Lal, who sold it on 17th February 1908 to Babu Ram. One Banwari Lal obtained, on 4th August 1908, a simple money decree against Sukh Lal, in execution of which he attached the house in question. Babu Ram aforesaid had in the meantime died, and his son Onkar Prasad objected to the attachment relying on the sale deed in favour of his deceased father. The objection was disallowed on the ground that the sale was not followed by possession and was a fictitious transaction. Thereupon a regular suit was instituted by Onkar Prasad for a declaration that it was not liable to be attached and sold in execution of Banwari Lal's decree pirthi Raj, an uncle of Onkar Prasad, acted as his next friend in that suit, which was eventually "dismissed as compromised" on 3rd July 1911. The surrounding circumstances were somewhat unusual. Pirthi Raj, the next friend and guardian of Onkar Prasad, executed a sale deed on 1st July 1911 in respect of the house in favour of Dhani Ram and Babu Lal, brothers of the vendor Sukh Lal. (Babu Lal should be distinguished from Babu Ram, the vendee under the sale deed of 17th February 1908). The consideration of the sale deed was directed to be paid to Banwari Lal in satisfaction of his decree. On the same date Dhani Ram and Babu Lal executed a deed of gift in favour of Mt. Bitola, the widow of Sukh Lal, and Raj Kishore, the son of Sukh Lal, in respect of a bala khana of the house in dispute.
3. On 29th February 1924, Onkar Prasad brought the suit out of which the present appeal has arisen for possession, basing his title on the sale deed, dated 17th February 1908, and impleading Dhani Ram and Babu Lal. He impugned the subsequent sale deed executed on his behalf by his guardian, Pirthi Raj as invalid in the absence of legal necessity for the alienation. Mt. Bitola and Raj Kishore were made parties at a subsequent stage. The suit having been brought on 29th February 1924, was more than 12 years from the date of the sale deed, dated 1st July 1911. It has been found by both the Courts below that the plaintiff attained majority on 6th March 1921, and the suit having been brought within three years from that date must be considered to be in time as against the defendants originally impleaded; but Mt. Bitola and Raj Kishore were impleaded on 11th July 1924, that is, more than three years after the plaintiff attained majority, and therefore the plaintiff's claim as against them is prima facie barred by limitation.
4. The defence was that the sale deed, dated 17th February 1908, founded on by the plaintiff, was fictitious. The finding of both the Courts below was in favour of the plaintiff on that question. The lower Courts also found that there w,as no legal necessity for the sale of 1st July 1911, executed by Pirthi Raj as guardian of the plaintiff, but that possession of. Mt. Bitola and Raj Kishore was adverse for more than 12 years before they were impleaded. The suit was, therefore, dismissed as regards one-third of the house assumed to be in possession of Mt. Bitola and Raj Kishore. By an order of this Court dated 10th April 1929, two issues were remitted to the lower appellate Court. They related to the nature and extent of the right of Mt. Bitola and to the specific portion of the house which is said to have been in her adverse possession. The finding returned by the Court below is that the right of Mt. Bitola and Raj Kishore is by adverse possession and is confined to a bala khana.
5. On return of this finding arguments have been addressed to us on the issues remitted for finding and on other questions arising in the case which were not disposed of by the order of remand.
6. Mr. Asthana, on behalf of the defendants, contended that the plaintiff's suit was barred by Article 11, Sch. 1, Lim. Act. It is contended that the claim of the plaintiff having been dismissed under Order 21, Rule 63, Civil P.C., when the house was attached by Banwari Lal in execution of his decree and the regular suit, which was subsequently filed, having been dismissed, the order passed under O, 21, Rule 63, became conclusive as regards the right of the plaintiff, which was not affirmed in any regular suit brought within a period of one year provided for by Article 11, Sch. 1, Lim. Act. The present suit, if it be considered to be a regular suit brought to contest the order under Rule 63, Order 21, Civil P. C, is long barred by limitation, which is only one year. We think that this contention is not well founded. The attachment, which had been objected to by the plaintiff and to which the order under Rule 63, Order 21, Civil P. C, related, was withdrawn, as the decree was otherwise satisfied. Article 11, Sch. 1, Lim. Act, ceased to have any application. Our attention has been drawn to Manilal Girdhar v. Nathalal Mahasukhram A.I.R. 1921 Bom. 35. The facts of that case are very similar to those before us. It was held that:
once the attachment was withdrawn, there was no longer any attachment or any proceeding in execution in which the order against the plaintiff would operate to his prejudice.
7. An earlier case of that Court Gopal Purshotam v. Bai Diwali [1894] 18 Bom. 241, was relied on in support of that view. We find ourselves in agreement with the view taken by the learned Judges in those cases. The controversy in proceedings under Order 21, Rule 58, Civil P.C., is between the decree-holder and the claimant whose property is attached as belonging to the judgment-debtor. The suit contemplated by Rule 63 is one in which the right of the decree-holder to attach the property in question in execution of his decree is contested.. As soon as his decree is otherwise satisfied and he withdraws the attachment in consequence, the cause of action for his suit of the nature contemplated by Order 21, Rule 63, Civil P. C, to which Article 11, Sch. 1, Lim. Act, applies, disappears. In a, subsequent suit which may be brought by the claimant against a third person, even though he may be the judgment-debtor whose property it was alleged by the decree-holder to be, the cause of action is altogether different from the cause of action which he had alleged against the attaching creditor in his suit under Order 21, Rule 63, Civil P.C. For these reasons, we think that the present suit is governed by the usual 12 years' rule, and not by Article 11, Sch. 1, Lim. Act.
8. Another contention, put forward on behalf of the appellant is that Article 139, 'Sch. 1, Lim. Act, applies and the suit is "barred under that article. The facts on which this contention is based are these: After the sale deed dated 17th February 1908, executed by Sukh Lal in favour of Babu Ram, the latter (the vendee) executed, on 25th February 1908, a karayanamah in favour of Sukh Lal (vendor) and his brother, Gulzari Lal, for two years. It is argued that the cause of action for recovery of possession accrued on the expiry of two years in the life-time of Babu Ram. The tenants and their heirs having continued in possession for more than 12 years after the expiry of the term limited by the lease, the lessor or his legal representative cannot recover possession after that period. We are unable to give effect to this argument. The term of the lease having expired, the lessees continued to hold over, not as tenants for a fixed period, but as tenants at sufferance; and the time will not in such a case begin to run until the tenancy at sufferance thus coming into existence terminates. This aspect of the question of limitation does not seem to have been raised in either of the Courts 'below and for aught that appears from the record the tenancy was continued by parties to the lease after the expiry of two years. There is nothing on the record to show that the tenancy terminated at a time more than 12 years before the institution of the present suit, but the tenants or their legal representatives withheld possession during that time. Under these circumstances, we hold that the suit is not barred by Article 139, Sch. 1, Lim. Act.
9. It has been already mentioned that the Courts below decreed one-third of the house to Mt. Bitola and Raj Kishore on the assumption that they were in possession to that extent for more than 12 years. The findings that have now been returned to the issues remitted by this Court are specific in determining the nature and extent of the possession of these two defendants which was limited to the bala khana. Accordingly, they must be held to have been in adverse possession of that part of the house for more than 12 years so as to extinguish the right of the plaintiff in regard to it. We modify the decree passed by the Courts below so far that the plaintiff's suit shall stand' dismissed as regards bala khana instead of undefined one-third of the house, as decreed by the Courts below. We direct, under the circumstances of the case, that the parties should bear their own costs throughout.