JUDGMENT 1. In this appeal which arises out of a suit brought by the Plaintiffs-Respondents to recover possession of certain land, upon establishment of their title, two questions arise for determination, first, whether the lower Appellate Court was right in giving the Plaintiffs a decree without disposing of the plea of limitation raised : and, second, whether the Court below was right in holding the proper custody of the amalnamah, relied upon by the Defendants, had not been satisfactorily proved, when the document was produced by the Defendants, whose title-deed it was and when they adduced evidence to show that it was in their custody. The learned vakil for the Appellant, the Defendant No. 5, contends that both these questions ought to be answered in the negative and the case sent back to the lower Appellate Court for a proper determination of the question of limitation and of the question of the genuineness of the amalnamah. 2. We are of opinion that the Appellant's contention is correct. The title set up by the Plaintiffs is that of tenancy under certain maliks created in the year 1297, that is, within twelve years before the institution of the suit ; and they allege that they were put in possession and were subsequently dispossessed by the Defendants. 3. The defence was that the suit was barred by limitation, that the Defendants had been in possession all along as tenants under the same maliks and that the Plaintiffs' allegation of possession and subsequent dispossession was false and the lease set up by the Plaintiffs collusive. 4. The first Court found in favour of the Defendants upon the question of title as well as upon the question of possession, and dismissed the Plaintiffs' suit. 5. On appeal by the Plaintiffs, the lower Appellate Court has found in their favour upon the question of title. It has also disbelieved the evidence of title as tenants set up by the Defendants ; and, then, without going into the question of limitation, which it considers as not arising in the case, it has given the Plaintiffs a decree. On appeal by the Plaintiffs, the lower Appellate Court has found in their favour upon the question of title. It has also disbelieved the evidence of title as tenants set up by the Defendants ; and, then, without going into the question of limitation, which it considers as not arising in the case, it has given the Plaintiffs a decree. The view of the learned Subordinate Judge upon the question of limitation is that it does not arise, because both the Plaintiffs and the Defendants claim to be tenants under the same maliks, and, if that is so as the possession of the Defendants cannot be adverse to the common landlord, it can neither be adverse to the Plaintiffs, who derive title from that landlord ; and, in support of this view, he has referred to the case of Jonardon Mundul v. Sambhu Nath Mundul I. L. R. 16 Cal. 806 (1889). 6. Now, it is quite true that if the Defendants were, as they alleged, tenants of the common landlord, their possession could not be adverse to the common landlord ; but according to the finding arrived at by the lower Appellate Court, that alleged tenancy has not been proved. If that is so, the Defendants were trespassers, and, as they have pleaded limitation, it remains to be seen whether they had acquired a title by adverse possession or whether the Plaintiffs or their predecessor in interest, the common landlord, had possession within twelve years before the institution of the suit in order to prevent its being barred by limitation. That it is open to a party Defendant to plead tenancy and limitation in the alternative is settled by the decision of a Full Bench of this Court in the case of Dinomonee Debia v. Doorga Pershad Mojoomdar 21 W. R. 70 (1873). As for the case of Jonardon Mundul v. Sambhu Nath Mundul 21 W. R. 70 (1873) relied upon in the judgment of the lower Appellate Court, what was held in that case was that the whole question between the parties, who claimed to hold under the same common landlord, was whether the title of the Plaintiffs or that of the Defendants was to prevail ; and as that question had been left undetermined, the case was remanded to the lower Appellate Court for retrial. It cannot therefore help the Plaintiffs-Respondents, in the present case, where it has been found that the alleged tenancy of the Defendants has not been proved. If the case of Jonardon Mundul v. Sambhu Nath Mundul I. L. R. 16 Cal. 806 (1889) goes further, as the learned vakil for the Respondents contends, and lays down the broad rule that, wherever a Defendant sets up a tenancy, he is precluded from availing himself of the plea of limitation, even though the plea of tenancy be found against him, we must say we are unable to follow that case to that extent, it being opposed to the Full Bench decision in the case of Dinomonee v. Doorga Pershad 21 W. R. 70 (1873) cited above. The question of limitation must therefore be decided. It was argued for the Plaintiffs-Respondents, that there is a finding in the judgment of the lower Appellate Court which disposes of the question of limitation, that finding being embodied in these words in the judgment appealed against: "The Plaintiffs have proved their possession by payment of rent." We are unable to accept this contention as correct. If the lower Appellate Court had found that the Plaintiffs had proved their actual possession after taking their lease, then, as that possession must have been possession within twelve years, it would have been sufficient to save their suit from being barred by limitation ; but the finding does not amount to a finding that the Plaintiffs have proved actual possession. It only amounts to this, that the Plaintiffs have paid rent and that is the way they have proved their possession. That cannot be sufficient : for mere payment of rent to their lessor would not show that they had possession of the land. 7. Then, upon the second question, the lower Appellate Court says this, speaking of the amalnamahs : "These documents are purported to be more than 30 years old but their proper custody has not been proved." The learned Subordinate Judge does not explain what he understands by proper custody. Sec. 90 of the Indian Evidence Act explains what proper custody is. Then, upon the second question, the lower Appellate Court says this, speaking of the amalnamahs : "These documents are purported to be more than 30 years old but their proper custody has not been proved." The learned Subordinate Judge does not explain what he understands by proper custody. Sec. 90 of the Indian Evidence Act explains what proper custody is. In the explanation to the section it is said :--"Documents are said to be in proper custody if they are in the place in which, and under the care of the persons with whom they would naturally be ; but no custody is improper if it is proved to have had a legitimate origin, or, if the circumstances of the particular case are such as to render such an origin probable." 8. Now if the amalnamahs are produced by the Defendants, whose title-deeds they are and the Defendants have proved that these documents were in their custody at the time when they were produced, it would follow that the requirements of the law have been complied with. Whether that has been the case or not we cannot say ; but we make this observation in order that the lower Appellate Court, when the case goes back for retrial, may consider the question of the genuineness of the amalnamahs and of their covering the lands in dispute with reference to the provisions of the law to which we have referred. 9. The result is that the decree of the lower Appellate Court is set aside and the case sent back to that Court for final disposal, after determining the points indicated above in accordance with the directions contained in this judgment. The costs of this appeal will abide the result.