JUDGMENT : CHAMIER, J. 1. The defendant-respondent, Raghubar Dayal, brought a suit to enforce a mortgage made in his favour by Darwesh Ali and obtained a decree against Darwesh Ali's heirs in execution of which he purchased the property himself. He attempted, but without success, to get possession of the property and was ultimately compelled to bring the present suit. The Subordinate Judge decreed the claim as regards an ahata. He seems to have considered that the case was governed by Article 138 of the Ist Schedule to the Limitation Act. He assumed apparently that the judgment-debtors were in possession of the property at the date of the sale. The defendant-appellant's case was and is that the judgment-debtors were not in possession at-the date of the sale, but he and his predecessors in interest were in adverse possession of the property and had been in possession for many years. 2. The issue fixed was “whether the claim is barred by limitation.” The defendant seems to have regarded the issue as laying the burden of proof upon him and he called five witnesses. 3. The plaintiff then gave evidence on his own behalf. The Subordinate Judge decreed the claim in part as already stated, treating the case as one governed by Article 138, Schedule I to the Limitation Act. On appeal to the District Court the defendant contended that Article 138 did not apply to the case and that it was for the plaintiff to prove that his judgment-debtors were in possession at the date of the auction sale. The District Judge agreed that, as a matter of law, the burden of proof was on the plaintiff, but he decided that this plea was not open to the defendant as he had elected to give evidence, and the court was at liberty to decide against him on the question of limitation if it found that the evidence produced by him failed to make out what he had essayed to prove. The learned Judge said that there was a long Madras ruling on the point on which he could not at the moment lay his hands. Counsel have been unable to discover any such ruling. The judgment shows traces of having been prepared in haste in more than one respect. In two places blanks have been left for dates which have not been filled in. Counsel have been unable to discover any such ruling. The judgment shows traces of having been prepared in haste in more than one respect. In two places blanks have been left for dates which have not been filled in. It seems probable that if the judgment, which was delivered some days after the close of the arguments had been read out in court as it should have been, these defects would have been remedied. We cannot agree with the learned Judge that the defendant has lost his right to insist upon the burden of proof being laid upon the right party. He merely followed what he understood to be the ruling of the Subordinate Judge on the question. The form of the issue suggests that the burden of proof lay in the first instance on the defendant. Both sides having given evidence, and there being no suggestion that any evidence has been excluded, we can deal with the case as if the burden of proof had been cast upon the right party. It was open to us either to remit the case for a fresh finding or as allowed by the present Code of Civil Procedure to consider the evidence and arrive at a finding our selves. We chose the latter alternative. 4. We have heard Mr. Muhammad Ishaq on the evidence, and we do not see our way to overruling the concurrent opinions of the courts below that the evidence produced by the defendants is worthless. The plaintiff stated on oath that his mortgagor was in possession from the date of the mortgage. Muhammad Tahir, who claims to have been in possession at that time, is the son-in-law of the mortgagor. He has produced four or five friends and relations to say that he has been in possession all along. It may be that he acted for his father-in-law in the collection of rents and so forth. But the evidence entirely fails to satisfy us that he was in possession of the property. Therefore we dismiss the appeal with costs.