JUDGMENT Walmsley, J. - The plaintiffs are the owners of a miras. They created a dar miras in favour of the Guhas, the Defendants, and in execution of a decree for rent they put the dar-miras to sale in the year 1890, when it was bought by Purna Chandra Dutta, who afterwards sold a six annas share to Sarat Chandra. The plaintiffs looked to the purchasers for the rent, and obtained two decrees for rent against them. In execution of a third decree for rent they put the dar-miras to sale and bought it themselves on 13th August 1904. They instituted the present suit on 11th August 1916. 2. The first Court decreed the suit but on appeal the learned Judge held that the suit was barred by Art. 137 of the Limitation Act. 3. On behalf of the plaintiffs the first point urged is that this plea of limitation is not raised in the pleadings. It is true that no reference is made to the particular article of the Limitation Act, but the written statement does assert that the suit is barred by limitation. Considering what plaintiff alleged as his cause of action I do not think we can say that the defendants' plea ought to have been stated more explicitly. 4. The second point is that Art. 137 is not the appropriate article : that Art. 139 is applicable, or failing that the general Art. 144. 5. If Art. 137 is the appropriate one, the time that has elapsed since the purchase makes no difference to the case : the suit was barred on the day of the purchase in 1904 as hopelessly as on the day when it was instituted nearly twelve years later. Two suggestions are made for taking the suit out of Art. 137. One is that that article applies to suits where the purchaser is a stranger, but the article says nothing of the kind, and we must not read into it words which are not there. A second is that the Guhas, were really the judgment-debtors, because they had allowed Purna and Sarat to represent them and were consequently hound by the decree. A second is that the Guhas, were really the judgment-debtors, because they had allowed Purna and Sarat to represent them and were consequently hound by the decree. The objection to this view is that the land-lords were aware of the fact that the Guhas, and not Sarat and Purna, were in possession, but they did not have them joined as defendants in the rent suit, in fact the plaintiffs have always taken the position that the Guhas are not tenants. I do not think they can now be allowed to say that they were none the less their judgment-debtors. 6. The learned pleader for the plaintiffs, however, relies more upon his other contention, that Art. 139 is the appropriate article. If it is, the plaintiffs are within time for the period of twelve years will begin to run from the date on which the sale was confirmed. The article refers to a suit by a landlord to recover possession from a tenant, and time runs from the moment when the tenancy is determined. It is said that these conditions are satisfied by the third prayer in the plaint, that is the prayer for a declaration that the darmirasi right (acquired at the auction sale) was merged in the mirasi right. I fail to see, however, that by this prayer the plaintiffs seek to recover possession from a tenant; for their case is that the Guhas are not tenants, and the men who were their registered tenants are not parties to the suit. Similarly, if we look to the starting point the plaintiffs do not allege that any tenancy of the Guhas has been determined. In my opinion the learned Judge of the Lower Appellate Court is right in holding that Art. 139 is not applicable. 7. As for the contention that Art. 144 applies to the suit if Art. 139 does not, cannot agree because in my opinion Art. 137 does apply. 8. I am not troubled by the suggestion that the case is a hard one for the Judge finds that Purna and Sarat never got possession and we were told in the course of the hearing that the plaintiffs were aware of the fact. 9. In my opinion the decision of the Lower Appellate Court should be affirmed, and the appeal dismissed with costs. Suhrawardy, J. 10. 9. In my opinion the decision of the Lower Appellate Court should be affirmed, and the appeal dismissed with costs. Suhrawardy, J. 10. I regret, I am unable to agree with my learned brother in the order he proposes to pass in this case. 11. On the question of limitation the first Court held that the plaintiffs' cause of action arose on the date of the sale of the tenure, i.e., 13th August 1904, or when the sale was confirmed, viz., 14th September 1904; the plaintiffs' suit having been instituted within twelve years of those dates, it overruled the plea of limitation and decreed the suit on the merits. The Lower 12. Appellate Court without entering into the merits of the case held on the allegations made in the plaint that the suit was barred under Art. 137 of the Limitation Act, 1908. 13. In order to face the plea of limitation, it is necessary to examine the facts as stated in the plaint and as found by the learned Munsif. It appears that the defendants held a dartniras under the miras held by the plaintiffs predecessor-in-title which was sold in execution of a rent decree obtained by the plaintiffs against the Guhas in 1890 and purchased by Purna who subsequently sold a portion of it to Sarat. Since then the names of Purna and Sarat were recorded in the plaintiffs' books as the tenants of the dar-miras; the plaintiffs looked to them only for their rent. The plaintiffs aver, and it has been found by the first Court, that "the plaintiffs were in possession of that miras tenure by realising rent from the dar-mirasdars, Puma and Sarat as is proved by contested decrees Exs. 3 and 4. Subsequently the rent of the dar-miras having fallen into arrears the plaintiffs brought a suit for rent against Puma and Sarat and in execution of the decree therein put the dar-miras taluq to sale and purchased it themselves in 1904. The plaintiffs brought the present suit for recovery of khas possession on the ground, among others, that the tenure became extinguished by merger in their superior tenure. 14. It is found that Purna and Sarat never obtained possession of the dar-miras after their purchase in 1890 which remained in the possession, which must be wrongful, of the defendants. The plaintiffs brought the present suit for recovery of khas possession on the ground, among others, that the tenure became extinguished by merger in their superior tenure. 14. It is found that Purna and Sarat never obtained possession of the dar-miras after their purchase in 1890 which remained in the possession, which must be wrongful, of the defendants. It is therefore argued that as the judgment-debtors were out of possession on the date of the sale in 1904, limitation should run against the plaintiffs auction-purchasers from the date when the judgment debtors were first entitled to possession, viz., 1890, and as it was over twelve years from that date when the plaintiffs brought the present suit their claim is barred under Art. 137. 15. It is beyond cavil that what the plaintiffs sole and purchased in execution of their decree in 1904 was not the right, title and interest of the judgment-debtors but the tenure itself which is described in the sale proclamation Ex. 1 as miras taluqdari right under patta. 16. Reading Arts. 136 and 137 together it is clear that the latter article intended to make the law uniform in cases of private and Court sales and the two article's in conjunction lay down that where the purchaser of an immoveable property at a private sale in execution of a decree sues for possession of the property of which the vendor or judgment-debtor was out of possession at the time of the sale, he the** purchaser, is not entitled to get a fresh start of limitation from the date of his purchase, but the time is to be calculated as Tuning against him from the date of dispossession of the vendor or judgment-debtor as if there was no sale. 17. This premises and presupposes that the purchaser has purchased the interest of the vendor or judgment-debtor, has stepped into his shoes and is claiming through him. 18. In the present case, as I have observed, the plaintiffs purchased not the interest of the judgment-debtors, but the tenure itself, and hence they cannot be said to be entitled to the possession of the property through the judgment-debtors. A purchaser in such circumstances is not a purchaser within the meaning of Art. 137. The same consequence will follow if the landlord purchases a tenant's right or the tenant surrenders his interest to the landlord. 19. A purchaser in such circumstances is not a purchaser within the meaning of Art. 137. The same consequence will follow if the landlord purchases a tenant's right or the tenant surrenders his interest to the landlord. 19. In all these cases, the landlord is not the transferee of the interest of the tenant but the effect of the transfer is to extinguish the tenancy giving immediate right of entry to the landlord, The Revenue Sale Law affords an analogy for the proposition as it has been held that the purchaser at a revenue sale even of share of a revenue paying estate is not a person claiming from or through the defaulter, but rather adversely to him and under a paramount title. [Bilas Chandra v. Akshoy Kumar (1912) 16 C.W.N. 587 = 14 I.C. 219 = 15 C.L.J. 436]. The terminus a quo in cases like these should be the date when the right to immediate possession accrued to the purchaser or, as is otherwise expressed when the estate fell into possession. 20. There is another point of view from which the present case should be looked at. It is conceded and rightly conceded in view of authoritative judicial pronouncements from the time of Sir Barnes Peacock to the present day that possession adverse to the lessee is not necessarily adverse to the lessor. Here the plaintiffs were in receipt of rent of the tenure from Purna and Sarat during the period that the defendants were holding adversely to the latter. The possession of the defendants as against Purna and Sarat in the circumstances was not of such a nature as to operate as an ouster of the plaintiffs. 21. In the above view of the law I hold that the article of the Limitation Act applicable to the present case is Art, 140 or Art. 144, and time against the plaintiffs is to be taken to have begun to run from the date of the confirmation of the sale of the tenure in September 1904, and that the suit is within time. [Krishna Gobind v. Hari Charan (1882) 9 Cal. 367 = 12 C.L.R. 18]. 22. To hold otherwise would be to violate the maxim that "prescription does not run against a party who is unable to act" (contra non ualentem agere nulla currit prae-scriptio). [Krishna Gobind v. Hari Charan (1882) 9 Cal. 367 = 12 C.L.R. 18]. 22. To hold otherwise would be to violate the maxim that "prescription does not run against a party who is unable to act" (contra non ualentem agere nulla currit prae-scriptio). Art. 139 contemplates a suit against the tenant and is not applicable in the present case. 23. For the appellants it is also contended that as the defendants had before the sale in 1904 acquired by adverse possession the right and interest of Purna and Sarat, they had become unrecorded tenants of the plaintiffs and as the sale in 1904 was of the tenure in execution of a rent decree obtained against the recorded tenants, it passed the interest of the defendants in the tenure also. No doubt there is a great deal of force in this contention. 24. In the circumstances of this case what the defendants acquired by adverse possession was the interest of Purna and Sarat, viz., the tenant's right which should be taken to have been extinguished by sale in execution of a rent decree obtained against Purna and Sarat who were the registered tenants of the plaintiffs and against whom alone could they proceed. All analogy is to be found in the effect of sales under the Revenue Sale Law where a purchaser has been held to be entitled to recover possession, even though the adverse possession was completed before the sale. [Kumar Kalanand v. Syed Sarafat Hossein (1908) 12 C.W.N. 528 and Rahimuddin v. Bhabangana Debya (1909) 13 C.W.N. 407 = 1 I.C. 1]. 25. In my judgment this appeal succeeds and should be allowed. The cage will be remanded to the Court of Appeal below for the decision of the other issues and for disposal of the case. Costs to abide the result. Walmsley and Suhrawardy, JJ.: 26. In view of our difference of opinion in this case, under the proviso of Cl. (2) of Sect. 98, C.P.C., we state the point of law on which we differ in this manner : "On the facts stated in this case, what is the article of the Limitation Act which is applicable?" Let (he case be laid before the learned Chief Justice for reference to another Judge or Judges. Woodroffe, J. 27. This matter has been referred to me on a difference of opinion between Mr. Justice Walmsley and Mr. Woodroffe, J. 27. This matter has been referred to me on a difference of opinion between Mr. Justice Walmsley and Mr. Justice Suhrawardy, the actual point referred being as follows:" On the facts stated in this case what is the article of the Limitation Act which is applicable." A preliminary objection has been taken on the ground that the reference was not in order and that the case should have been decided by the opinion of the senior Judge. But I am of opinion that though that procedure is applicable in the case of Letters Patent Appeals, Sect. 93 of the Code governs this case, I therefore overrule the objection. 28. I would first shortly state the facts for the purpose of this judgment. The plaintiffs are the owners of a miras tenure. There was a dar-miras tenure under them of which the Guha defendants were tenants. This under-tenure was sold in execution of a rent decree in 1890 and Purna Chandra Dutta was the purchaser. This Purna subsequently sold a six annas share to Sarat Chandra Dutt and Purna and Sarat whom I call the Duttas were registered tenants of the under-tenure. The Duttas never obtained possession. On the 13th August 1904 the trader-tenure was again sold in execution of a rent-decree obtained against the Duttas who were registered tenants. It was purchased by the plaintiffs. The plaintiffs brought this suit for possession on the 11th August 1916. 29. The question now is what is the nature of the interest acquired by the plaintiffs by their purchase on the 13th August 1904. If they purchased the right, title and interest of the judgment-debtors only, they purchased nothing as the right of the judgment-debtors was extinguished by adverse possession for over 12 years by the Guhas and the plaintiffs therefore acquired no title to the under-tenure. No question of limitation as regards the plaintiffs' right arises at all in that view, because, a question of limitation arises only on the assumption that there is a title which may be made subject to the operation of the Limitation Act. 30. Nor where no title is shown, is recourse to the provisions of the Limitation Act necessary. Art. 139 of the Limitation Act is applicable only where the purchaser acquires the right, title and interest of the judgment-debtor. 30. Nor where no title is shown, is recourse to the provisions of the Limitation Act necessary. Art. 139 of the Limitation Act is applicable only where the purchaser acquires the right, title and interest of the judgment-debtor. But the rights of a purchaser at a sale under a decree for rent must be governed by the Bengal Tenancy Act. Where a rent-decree has been properly obtained, the tenure itself passes to the purchaser and not the right, title and interest of the judgment-debtor only. The rights of the purchaser then must be determined by the provisions of the Bengal Tenancy Act u/s 158 B and Section 159. The plaintiffs by their purchase therefore acquired the under-tenure with power to annul encumbrances under the provisions of the Bengal Tenancy Act. The interest which the Guhas had acquired by their adverse possession against the recorded tenants was according to the decisions of this Court an encumbrance under the Bengal Tenancy Act. If so, the plaintiffs could have annulled the encumbrance created by the adverse possession of the defendants and they could do so only under the provisions of Section 167 of the Bengal Tenancy Act. According to that Act (Section 167), however, if the party does not follow the procedure within one year as laid down in that section, his right to recover possession as against the tenant is lost. 31. In this case there is a finding that the plaintiffs knew about the possession of the defendants all along and there is no allegation nor is it suggested before me that notice was served under Sect. 167 of the Bengal Tenancy Act. This doubtless is not the way in which the case has hitherto been treated; but no question of fact is involved. It is found that there had been adverse possession, that the tenure itself was purchased and there is no doubt whatever that no proceedings were taken to annul the adverse possession as an encumbrance. 32. The question then is one of law arising on the facts, whether on such facts the suit is barred; Mr. Justice Walmsley thought it was barred, according to the opinion of Mr. Justice Suhrawardy it was not barred. 33. It has been argued however that opinion has varied as to whether adverse possession is an encumbrance under the Bengal Tenancy Act. Justice Walmsley thought it was barred, according to the opinion of Mr. Justice Suhrawardy it was not barred. 33. It has been argued however that opinion has varied as to whether adverse possession is an encumbrance under the Bengal Tenancy Act. But without discussing this question for the moment it appears to me that the plaintiffs in this suit cannot have it both ways, that is, they cannot invoke the Bengal Tenancy Act in order to establish that they bought the tenure and not the judgment-debtors interest and at the same time contend that the adverse possession is not an encumbrance under that Act. If they could claim to have purchased a tenure and that the previous adverse possession was not an encumbrance on it, then the limitation would run from the date of their purchase. 34. But this, I am of opinion, cannot be so in the circumstances of this case. They cannot say that they purchased the tenure under the Bengal Tenancy Act free from adverse possession without first annulling the latter as an encumbrance. 35. Moreover, as at present advised, I see no reason for differing from the decisions of this Court that the word encumbrance as used in Sects. 159 and 161 of the Bengal Tenancy Act includes a statutory title acquired by a trespasser by adverse possession of the land of a defaulting tenant. 36. There appears to me to be no substance in the contention that there is no question of encumbrance, because the dar-miras which was the subject of the encutnbrance had ceased to exist being merged in the superior tenure on the plaintiffs' purchase. There is in my opinion no merger in the circumstances above stated. 37. The result is that the suit is in my opinion barred under Sect. 167 of the Bengal Tenancy and not in my opinion under any of the articles of the Limitation Act mentioned in the reference. 38. The position then is this: Walmsley, J. is of opinion that Art. 137 applies and that the suit is barred. But in my opinion that article does not apply to a case such as this where the tenure itself and not the right and interest alone is purchased. 38. The position then is this: Walmsley, J. is of opinion that Art. 137 applies and that the suit is barred. But in my opinion that article does not apply to a case such as this where the tenure itself and not the right and interest alone is purchased. Suhrawardy, J. is of opinion, as I am, that Art. 137 does not apply because the tenure was sold but he goes further and holds that the suit is not barred. But if the tenure was, sold it could only be sold under the Bengal Tenancy Act and subject to avoidance of encumbrances. And as this encumbrance was not set aside, the suit is barred u/s 167, Bengal Tenancy Act, though not under Art. 137 of the Limitation Act. My answer then is that Art. 137 does not operate to bar the suit but that other sections are not applicable so as to admit the suit which should in my opinion be dismissed under Bengal Tenancy Act, Section 167. 39. This finding, however, raises a question of difficulty in disposing of the reference. The learned Judges who made it assumed that one or other of the sections of the Limitation Act mentioned in their judgments apply. I am asked to decide which. My answer is none of the sections apply. Substantially considered I do not therefore answer the question put to me. It is only on my deciding the question referred one way or the other that I have power to dispose of this appeal. This difficulty arises from the change in the law. Formerly the (bird Judge could dispose of the case generally, now he must decide the point of law referred and then dispose of the appeal, the referring Judges having indicated how it should be disposed of according to the possible answers to be given. The result is that under the present law a Judge may be asked to decide whether this or that applies when his opinion may) be that neither does apply. 40. There is a further difficulty, namely, that the ground upon which I would hold the suit barred was not taken before the referring Judges. No doubt as I have said the question is under the circumstances one of law. 40. There is a further difficulty, namely, that the ground upon which I would hold the suit barred was not taken before the referring Judges. No doubt as I have said the question is under the circumstances one of law. But the point of law which is an important one was not referred to me nor even discussed by the learned Judges, viz., whether adverse possession is an encumbrance under the Act, a proposition which is contested before me. I have expressed my view on this matter but the question still remains whether whatever be my view upon it I can act on my opinion when this point was not referred to me. If I were at liberty to dispose of the appeal, I would dismiss it but I am not satisfied that I have under the circumstances power to dispose of it. 41. I therefore answer the question referred by saying that none of the sections of the Limitation Act referred to apply and direct that this judgment be placed before the referring Judges. As this reference is infructuous, possibly the result may be that as there is no majority of Judges reversing the judgment of the Court below the appeal may be dismissed. But this is a matter for the learned Judges themselves to determine. 42. The Division Bench (Walmsley and Suhrawardy, JJ.) then passed the following order on 26th May 1922. 43. In view of the judgment delivered by Mr. Justice Woodroffe to whom this appeal was referred under the proviso of Cl. (2) of Section 98, C.P.C. we think we ought to proceed, under Cl. (2), that is, the part preceding the proviso and hold that this is a case in which there is no majority which concur in a judgment varying or reversing the decree appealed from and accordingly order that the decree appealed from be confirmed and this appeal do, stand dismissed with costs.