JUDGMENT : RICHARDS, C.J.:— This appeal arises out of a suit in which the plaintiffs claimed possession of premises described as “sarai bala” and a parao attached thereto. The plaintiffs' case was that the parao was transferred by way of usufructuary mortgage on 2nd April 1853 to secure Rs. 100 and that the whole sarai was similarly mortgaged on 26th June 1853. Persons who were alleged to be the representatives of the original mortgagees were made defendants. They are relatives of the plaintiffs and did not contest the suit. The plaintiffs also made Saiyed Asad Ali a defendant, stating that they did so because be alleged himself to be the purchaser of half the parao at an auction-sale, but that: the judgment-debtors had no interest which could be sold. It is admitted that Saiyed Asad Ali was an auction-purchaser at a sale of the interest (if any) of the defendants third party. These last-mentioned defendants had, of course, no interest in contesting, and did not contest, the present suit. The contest in the suit was only about that part of the premises claimed by the defendant Saiyed Asad Ali. 2. Saiyed Asad Ali put in a written statement which beyond doubt put the plaintiffs on proof of everything that it was necessary to prove to entitle them to a decree for possession of the property claimed by them. Among other matters pleaded in the written statement was an allegation that the parao claimed by Saiyed Asad Ali was not in sarai bala. On the general merits of the plaintiffs' case if mayss be remarked that it is strange that the plaintiffs have waited since the year 1853 (over 50 years) to redeem the mortgages for the small sums of Rs. 100 and Rs. 25. The mortgaged property was worth very much more. On the other hand the answering defendant purchased half the parao for the sum of Rs. 11. If the title was clear it would be worth a great deal; more. However this may be, the plaintiffs are entitled to a decree if they prove their case. If the plaintiffs fail, to prove their case the answering defendant is entitled to have the suit dismissed as against him notwithstanding: that he purchased the property in dispute for a small sum. 3. The Court of first instance granted; the plaintiffs a decree. Mr. If the plaintiffs fail, to prove their case the answering defendant is entitled to have the suit dismissed as against him notwithstanding: that he purchased the property in dispute for a small sum. 3. The Court of first instance granted; the plaintiffs a decree. Mr. Sabonadiere reversed the decree of the Court of first instance. A learned Judge of this Court remitted an issue which war tried by Mr. Pitambsr Joshi. In remitting the issue the learned Judge-directed that no further evidence should be taken. Upon the finding of Mr. Joshi the learned Judge of this Court restored the decree of the Court of first instance. The case has come again before this Court in Letters Patent appeal. 4. There can be no doubt that if the plaintiffs proved that there was a subsisting mortgage affecting the property claimed by the answering defendant and that the equity of redemption was vested in them, they would be entitled to a decree. On the other hand the answering defendant was entitled to call upon the plaintiffs to prove that they had been in possession of the property in dispute within 12 years of the institution of the suit. In my opinion it was not necessary for the answering defendant to prove that he or persons through whom he claimed were in possession for over 12 years. The plaintiffs need not prove actual physical possession. A man can be in “legal” possession (e.g., through his tenant, caretaker, or usufructuary mortgage). In the present case the plaintiffs did not allege, much less prove, that there was any one in possession otherwise than as mortgagee. It was necessary for the plaintiffs to prove not only that there were mortgages affecting some premises; it was necessary to prove that the mortgages or any one of them affected the actual premises claimed by the answering defendant. Mr. Sabonadiere found; that the mortgages were not proved, and reading his judgment as a whole I think it is absolutely clear that he intended to find and did find that the plaintiffs failed to prove that the mortgages (even if they were subsisting mortgages) included the premises in dispute. If this was the finding of the learned District Judge, it was binding on this Court in second appeal and would, in my opinion, have entitled the answering defendant to have the appeal dismissed. 5. If this was the finding of the learned District Judge, it was binding on this Court in second appeal and would, in my opinion, have entitled the answering defendant to have the appeal dismissed. 5. The issue which the learned Judge of this Court sent down for a finding was as follows: “Have the plaintiffs or their predecessors-in-title been id” possession either personally or through others within 12 years?” The finding was as follows: “On the whole I find that the persons whom the plaintiffs call their mortgagees were in possession.-after September 1910.” 6. Now it was never suggested that any one was in possession of the disputed premises otherwise than as mortgagee (and Mr. Sabonadiere found that the defendants were not mortgagees). There is no finding that anyone was ever put into possession by permission otherwise than as mortgagee. Such evidence as was given related to the alleged mortgages and not to permission (of any other kind, and the finding of Hr. Sabonadiere that these mortgages were not proved to include the premises in dispute was conclusive in second appeal. The learned Judge of this Court says in his judgment of 12th December 1913: “There can be no doubt whatever that as between the parties, the contest raged round the question as to whether the defendant or his so-called predecessors-in-title had been in actual possession and whether… whom the plaintiffs had admitted to be their mortgagees had been in possession.” I do not think this is quite accurate. There had been a very sharp contest as to whether the premises in dispute were or ware not in Sarai Bala. The evidence was very conflicting and documents had been tampered 1 with or fabricated. I do not think that: the learned Judge of this Court ought to have referred the particular issue he did, nor to I think the finding of Mr. Pitamber Joshi justified the setting aside of the decree of the Court of first appeal. If there was any inconsistency in the finding of Mr. Sabonadiere so as to make his finding on the subject of the mortgages bad, a new issue on the point might have been referred. Judging from the evidence referred to by Mr. Sabonadiere it is difficult to see how the plaintiffs proved that the mortgages covered the property in dispute. If there was any inconsistency in the finding of Mr. Sabonadiere so as to make his finding on the subject of the mortgages bad, a new issue on the point might have been referred. Judging from the evidence referred to by Mr. Sabonadiere it is difficult to see how the plaintiffs proved that the mortgages covered the property in dispute. If however the plaintiffs' case in the appeal was that the defendants first party were in possession on their behalf (other than as mortgagees), it was a new case and could not be disposed of on evidence which related only to the mortgages. I think that Mr. Sabonadiere's finding was a finding that the plaintiffs failed to prove a subsisting mortgage covering the premises now in dispute. If we accept this finding, the plaintiffs have failed to prove possession of this part of the property by themselves or any other persons on their behalf within 12 years of the institution of the suit. I would therefore allow the appeal. BANERJI, J.:— This appeal relates to a half-share of a plot of land which is a camping ground or parao and forms part of the property claimed in the suit by the plaintiffs-respondents. The appellant purchased the half share at auction in 1903 as the property of the defendants of the third party, and it has been found that he has been in possession since that year. It has also been found that the land did not belong to the predecessors-in-title of the appellant and that they never were in possession, so that the appellant; is not the owner of the land in question. This, of course, will not entitle the plaintiffs to a decree unless they can prove their own title to the property and a title which still subsists. All the lower Courts which tried this suit have found that the land in question originally belonged to the plaintiffs-respondent. The finding, on the point, of Mr. This, of course, will not entitle the plaintiffs to a decree unless they can prove their own title to the property and a title which still subsists. All the lower Courts which tried this suit have found that the land in question originally belonged to the plaintiffs-respondent. The finding, on the point, of Mr. Sabonadiere, who dismissed the suit, is in the following terms: “I find that although the case for the respondents is not too strong, yet it does amount; to proof that they are owners of this parao or were, and that case has not been rebutted.” As it has been found that the ownership of the property was vested in the plaintiffs and not in the appellant, the plaintiffs ace entitled to recover possession unless they have lost their title by reason of the adverse possession of some one for a period exceeding 12 years. It has not been suggested that they have lost their ownership in any other way. 7. It has been found by the Court below that; before the appellant took possession of the land in dispute, it was for several years in the physical possession of Mukta Prasad, the predecessor-in-title of the first set of defendants, and of those defendants. The plaintiffs alleged that their ancestors had mortgaged the land to Mukta Prasad in 1853 and that he and his successors were in possession as usufructuary mortgagees. The plaintiffs brought the present suit for redemption of the mortgage. The Court of first instance found in favour of the plaintiffs and granted them a decree. The defendants of the first party, who are the representatives of the original mortgagee, submitted to the decree. The appellant alone appealed. On his appeal Mr. Sabonadiere held that the alleged mortgage had not been proved and he dismissed the suit against the appellant on this ground. In view of the evidence referred to by the Court of first instance and Mr. Pitamber Joshi I think Mr. Sabonadiere's finding was erroneous, but as it was a finding of fact this Court was bound to accept it in second appeal. The finding was not however sufficient in my opinion for dismissal of the suit. It was necessary to find whether the possession of Mukta Prasad and his successors was adverse to the plaintiffs because unless it was adverse the plaintiffs' proprietary title did not become extinct. As Mr. The finding was not however sufficient in my opinion for dismissal of the suit. It was necessary to find whether the possession of Mukta Prasad and his successors was adverse to the plaintiffs because unless it was adverse the plaintiffs' proprietary title did not become extinct. As Mr. Sabonadiere had not come to any finding on this point our learned brother Tudball was in my opinion fully justified in referring an issue to the Court below. The finding of Mr. Pitamber Joshi, though not very clearly expressed, is in substance a ending to the effect that the possession of Mukta Prasad and his representatives was on behalf of the plaintiffs and was equivalent to their possession. He found that Mukta Prasad, so far from setting up a right of his own, had alleged himself to be mortgagee and claimed to enforce the mortgage. Upon this finding the learned Judge of this Court was in my opinion right in decreeing the claim, against the appellant. The failure of the plaintiffs to prove as against the appellants the mortgage alleged by them, would not necessarily make the possession of Mukta Prassad and his successors-adverse. Possession to be adverse must, as observed by Dr. Markby in his Elements of Law, Ch. 10, Edn. 2, be possession “by a person who does not acknowledge the others' rights but denies them.” There must be an express or implied repudiation of the rights of the true owner and an open assertion by the person in possession of a claim of right to hold the property on his own behalf. Unless possession is coupled with an express or implied claim of right “inconsistent with the title of the lawful owner” it cannot be regarded as adverse to the true owner. On this point I need only refer to the remarks of Markby, J., in Bejoy Chunder Banerji v. Kally Prosonno Mooherjee, [1879] 4 Cal. 327 and of Farran, C.J., in Bhavrao v. Rakhmin, [1899] 23 Bom. 137: see also. Banning on Limitations, Edn. 2, p. 101. In the present case Mukta Prasad or his succssors who have been found to have been the only persons in actual physical possession never denied the plaintiffs' right and never asserted a proprietary right in them selves. On the contrary Mukta Prasad claimed to be the mortgagee of the property. 137: see also. Banning on Limitations, Edn. 2, p. 101. In the present case Mukta Prasad or his succssors who have been found to have been the only persons in actual physical possession never denied the plaintiffs' right and never asserted a proprietary right in them selves. On the contrary Mukta Prasad claimed to be the mortgagee of the property. His representatives who are the defendants of the first-party in the present suit did not deny the mortgages set up by the plaintiffs and submitted to the decree for redemption made by the Court of first instance. Their possession cannot therefore be regarded as adverse to the plaintiffs. By reason of their possession the plaintiffs title has not become extinct and they are entitled to recover possession from the appellant who has no title. I would, dismiss this appeal with costs. 8. By the Court.— The order of the Court is that the appeal be allowed, the decree of this Court be set aside and the decree of the lower appellate Court restored. The parties will abide their own costs in this Court.