JUDGMENT Misra and Kaul, JJ. - This is an appeal u/s 45 of the Encumbered Estates Act against an order of the Special Judge, First Grade, Bara Banki, dated 26th May, 1939, dismissing the objections of Kodi Lal claimant u/s 11 of the Act. 2. The appeal was presented through Mr. Naziruddin, an advocate of this Court, on v 31st July, 1939. It was unaccompanied by a vakalatnama, but the memorandum bore a note to the effect that the advocate's power had been filed in the lower Court. It appears that Mr. Nazir Uddin had argued the case in the Court below and was under the impression that he had acted for the objector under a duly executed power. When the record came to this Court, the office discovered on 23rd April, 1940, that the appearance of the Advocate concerned in the Court of the Special Judge was on the basis of a memorandum of appearance only. When the matter was brought to his notice, lie forthwith filed a power on the 25th April, 1940. As this was done long after the expiry of the limitation for preferring an appeal, a report was made that the appeal was incompetent. 3. A preliminary objection has been taken by the respondent's learned Counsel on the ground of improper presentation of the appeal, it being urged that in filing the appeal in this Court over his own signatures Mr. Naziruddin was acting and not pleading and there was therefore no valid appeal. We have heard the learned Counsel for the parties at length, and we are of opinion that the preliminary objection must fail. Order 41, rule 1, C. P. C. prescribe that a memorandum of appeal should be signed by the appellant or his pleader. By Order 3, rule 1, C. P. C. an act required or authorised by law to be performed by a party in any Court may be done by the party in person or by a recognised agent or a pleader on his behalf. By Order 3, rule 1, C. P. C. an act required or authorised by law to be performed by a party in any Court may be done by the party in person or by a recognised agent or a pleader on his behalf. Rule 4, sub-rule 1 of the same order lays down the manner of appointment of a pleader, It says No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. 4. The sole question for determination is whether absence of authority could be cured by a duly executed power filed after the expiry of the limitation provided by law for appeals. There is no doubt that in presenting an appeal and in signing it on behalf of Kodi Lal Mr. Nazir Uddin acted for him vide All India Barai Mahasabha through Mr. Kshetra Nath Sen v. Pt. Jangi Lal Chaurasia 1940 OA 1206 : 1941 A W R (C C) 10 : AIR 1941 Oudh 169 : 1910 OWN 1263. There is also no doubt that the appeal was filed by Mr. Nazir Uddin with the knowledge and on instructions from his client Kodi Lal and that it suffered from a procedural defect under a bona fide though mistaken belief that the necessary power already existed. The defect was re needed as soon as the mistake was brought to the notice of the Advocate concerned. We think a procedural irregularity of this nature arising from a bona fide mistake on the part of the pleader is not so vital as to render the appeal incompetent, and the memo, presented by him need not therefore be ordered off the file on a technical ground of this character. It is within the discretion of the Court to permit rectification where circumstances warrant such a course. In All India .Barai Mahasabha through Mr. It is within the discretion of the Court to permit rectification where circumstances warrant such a course. In All India .Barai Mahasabha through Mr. Kshetra Sen v. Pandit Jangi Lal Chaurasia 1940 OA 1206 : 1941 A W R (C C) 10 : AIR 1941 Oudh 169 : 1910 OWN 1263 a Division Bench of this Court expressed the view that the presentation of a plaint, memo, of appeal or an application being an "act" as contemplated by Order 3, rule 1, C. P. C. it was imperative that the presentation should be by the party in person or by his recognised agent or pleader. But it was pointed out that the presentation by a person not properly authorised would amount to a mere irregularity which could be allowed to be cured. The same view was expressed in Chandra Kanta Hazra v. Rajani Kanta Das (1935) 39 CW N 534. A Full Bench of the Allahabad High Court in Ali Muhammad Khan v. Ishaq Ali Khan (1932) 54 All 57, came to a similar conclusion in a case where an irregularity of a cognate nature occurred. There the suit was instituted in the plaintiffs name by his mother acting as his next friend and describing him as a minor though in fact he was a major. The defect was discovered, but it was found that the suit was filed with the authority of the plaintiff and was in fact prosecuted by him in person. Upon these facts the view of the Full Bench was that the defect amounted to a mere irregularity of procedure. It did not affect the jurisdiction of the Court, and the plaintiff having acted in good faith and without gross negligence it was open on consideration of the circumstances to allow the plaintiff to remedy it. We may also refer to the decision of their Lordships of the Privy Council reported in Mohini Mohun Das v. Bungsi Buddan Saha Das (1890) 17 Cal 580. In that case out of the three plaintiffs only one had signed and verified the plaint. There was no indication that the other co-plaintiffs approved of the action before the expiry of limitation. The defect was subsequently noticed, but the plaiuthi's who had not signed or verified the plaint were not non-suited and their Lordships held that they nevertheless became parties from the time of presentation of the plaint. There was no indication that the other co-plaintiffs approved of the action before the expiry of limitation. The defect was subsequently noticed, but the plaiuthi's who had not signed or verified the plaint were not non-suited and their Lordships held that they nevertheless became parties from the time of presentation of the plaint. The learned Counsel for the respondents in support of their contention has cited a number of cases. Most of them have been discussed by this Court in A- I. Barai Mahasabha case, and it would not be profitable to examine them again. The governing rule no doubt is that the Counsel must be duly authorised by his client to enable him to sign the appeal or to present it on his behalf. The principle, however, upon which this rule is based is that of public policy. The fact of delegation of authority by a client to his pleader and the terms and extent of that delegation have to be ascertained with precision in order on the one hand to regulate the relations of the litigant with the person whom he empowers to act on his behalf and to bind his client in his dealings with the Court and on the other to exhibit the extent to which his acts are to be regarded as truly representing his client. Order 3, rule 4, C. P. C. therefore provides the manner in which the pleader should be appointed and shows that the proof of such power should be furnished by a writing duly signed by the litigant. Obviously an oral delegation would be unsatisfactory. It is to be noticed that the procedure, which is laid down imposes a prohibition on the pleader to act without a valid power. It does not confer any benefit on the opponent except perhaps on the hypothesis that the actings of the Counsel do not amount to acting in law. Where circumstances disclose however that the omission to file a power at the time of presentation of the appeal was accidental, it would be inequitable to visit the penalty for the omission on the litigant by insisting that his appeal must fail. Sub- rule 1 of rule 4, Order 3 does not prohibit a Court from giving u/s 151, C.P.C retrospective validity to the act of a pleader who files a vakalatnama subsequently. Sub- rule 1 of rule 4, Order 3 does not prohibit a Court from giving u/s 151, C.P.C retrospective validity to the act of a pleader who files a vakalatnama subsequently. Sub-rule 2 merely says that a vakalatnama shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing. 5. Ordinarily a power must be filed either antecedently or simultaneously with the acting but unless it is so enjoined or any principle of law is violated or injustice is likely to occur, a statutory rule of practice should not normally be allowed to be used as a weapon of attack. The following dictum of Bowen L. J, in Cropper v. Smith (1884) 26 Ch. D 700, may be here referred to with advantage : The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights............Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy. 6. If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal. 7. We may mention that the appellant has presented a petition for condonation of the delay u/s 5 of the Indian Limitation Act. Under the circumstances of the case we have no hesitation in holding that there was sufficient cause and in ex- tending therefore the period of limitation up to 25th April, 1940, the date when the vakalatnama was filed by Mr. Nazir Uddin. From that time the appeal must in any event be deemed to be valid. 8. Before we take up the appeal on merits, we may dispose of another matter which arises on an office reports, but which has not been pressed by the respondents at the time of the arguments. In the memo, of appeal which was presented in this Courts on 31st July, 1939, only seven respondents were originally impleaded. On 5th September, 1939, the appellant preferred an application impleading certain other persons as respondents and these were allowed to be added subject to any question of limitation which might be raised by the other side. In the memo, of appeal which was presented in this Courts on 31st July, 1939, only seven respondents were originally impleaded. On 5th September, 1939, the appellant preferred an application impleading certain other persons as respondents and these were allowed to be added subject to any question of limitation which might be raised by the other side. The office reports that the limitation for appealing against the lower Court's order had already expired on 5th September, 1939. This is wrong both by reason of the fact that the appeal was still in time and of our order extending the limitation for appeal till 15th April, 1940. The office report must, therefore, be over-ruled. 9. On merits the order of the lower Court is impugned mainly on two grounds. It is urged in the first place that the order appealed against operated to re-open a dispute which had been settled between the parties during the proceedings for perfect partition of village Akbarpur. and it therefore contravenes the provisions of Section 233 (k) U. P. Land Revenue Act. In the second place it is strenuously contended that Kodi Lal appellant was in adverse pos-session of the property and his objections on this score were wrongly over- ruled by the Special Judge. In order to appreciate the appellant's arguments it is necessary to state the following undisputed pedigree : NABI BUX 10. Hadi Hasan, Mehdi Hasan and Abdul Razzaq, the three sons of Nabi Bux, each owned a share of 5 annas 4 pies in villages Akbarpur and Udaria. Subsequently Mehdi Hasan sold away his two annas eight pies share of Udaria. With that share we are no longer concerned. There- after between the years 1908 and 1909 he executed two possessory mortgages, Exs. A29 for Rs. 6,000, A30 for Rs. 3,000 in favour of Bechu Sah, father of Kodi Lal appellant hypothecating thereunder his en- tire share in village Akbarpur and his remaining share in village Udaria. On the date of the latter mortgage Mehdi Hasan executed a deed of sale Ex. 1, by which he transferred his equity of redemption in 5 annas 4 pies of village Akbarpur and 2 annas 8 pies in village Udaria to Kodi Lal, the son of Bechu Sah, mortgagee, in consideration of Rs. 3,000 which was set off to- wards the discharge of a previous debt payable by the vendor to Bechu Sah. 1, by which he transferred his equity of redemption in 5 annas 4 pies of village Akbarpur and 2 annas 8 pies in village Udaria to Kodi Lal, the son of Bechu Sah, mortgagee, in consideration of Rs. 3,000 which was set off to- wards the discharge of a previous debt payable by the vendor to Bechu Sah. Mutation was in due course effected in Kodi Lal's favour. The objector admitted in the Court below that Kodi Lal and his father formed a joint Hindu family and the learned Special Judge has held on consideration of the evidence and circumstances that the mortgagee rights as well as the equity of redemption in the two villages constituted in fact the joint family property of Bechu Lal and his sons. This finding has not been challenged in argument at the bar. 11. Abdul Ghaffar who was a descendant of the third sen of Nabi Bux and who owned 2 annas 8 pies share in village Akbarpur had also possessorily mortgaged his share, to Bechu Sah by a mortgage deed in 1905 and by subsequent deeds of further charge. On 9th August, 1909, he sold the equity of redemption in that share to Kodi Lal under Ex. 2. The latter representing the joint family thus acquired the equity of redemption in 8 annas of Akbarpur and 2 annas 8 pies of Udaria by Exts. 1 and 2 while his father as representing the family held possession over these shares as mortgagee. These sales of the equity of redemption gave rise to three pre-emption suits. Two suits related to 8 annas of Akbarpur. These were decreed in favour of Hadi Hasan on different dates in 1911 on payment of about Rs, 3,000. The third suit related to 2 annas 8 pies of village Udaria and was decreed in favour of Mst. Asgbari on payment of Rs, 763-12. The pre-emption monies were in due course deposited by Hadi Hasan and by Mst. Asghari and were withdrawn by Kodi Lal (vide Exs. A10, A5, A12, A13, A14, A15, All, A4 and A6). The pre-emptors however took no action for symbolical delivery of possession under Order 21, rule 36, C. P. C. 12. On 13th August, 1919, Hadi Hasan executed a deed of gift Ex. Asghari and were withdrawn by Kodi Lal (vide Exs. A10, A5, A12, A13, A14, A15, All, A4 and A6). The pre-emptors however took no action for symbolical delivery of possession under Order 21, rule 36, C. P. C. 12. On 13th August, 1919, Hadi Hasan executed a deed of gift Ex. A27 in respect of his 5 annas 4 pies ancestral share and of his equity of redemption in 8 annas pre- empted share of Akbarpur and 2 annas 8 pies of Udaria to his grandsons Ahmad Hasan, Mahmud Hasan and Manzur Hasan The donees obtained mutation as regards the ancestral share of Hadi Hasan, but as Kodi Lal's name still continued to be recorded in the revenue papers against 8 annas share of Akbarpur and 2 annas 8 pies of village Udaria mutation in respect of the properties could not be effected in favour of the donees. There- after a number of proceedings took place in the revenue Courts in order to obtain the rectification of the Khewat of both villages so far as it related to the pre empted shares but in these Kodi Lal manage 1 to succeed every time and his name therefore still continuous to be recorded. 13. On 16th January, 1922, Kodi Lal in conjunction with Abdul Sattar, one of the grandsons of Nabi Bux, applied for perfect partition of village Akbarpur, and therein he claimed that he was the owner of 8 annas share, Ahmad Hasan and his brothers were parties to these proceedings as donees of Hadi Hasan, and they raised objections to Kodi Lal's proprietary title on the ground of preemption decrees and the gift, vide Ex. 31. No orders appear to have ever been passed on these objections and partition proceedings were framed on the footing that the equity of redemption in 8 annas share still belonged to Kodi Lai. Ahmad Hasan and his brothers filed another objection Ex. 35 this time against the partition proceedings apparently u/s 114, U. P. Land Revenue Act. These were dismissed on 7th September, 1923, and the dismissal was upheld in appeal both by the Deputy Commissioner and the Commissioner vide Exts. 38 and A25. The learned Commissioner while rejecting the appeal incidentally observed that the partition could not affect the title to property and as soon as the appellant acquires his' title he gets the property, partition or not partition. 14. 38 and A25. The learned Commissioner while rejecting the appeal incidentally observed that the partition could not affect the title to property and as soon as the appellant acquires his' title he gets the property, partition or not partition. 14. During the pendency of the appeals in the Court of Deputy Commissioner and the Commissioner a partition lot in the name of Kodi Lal was prepared and the partition was confirmed on 29th April, 1924, by means of the order of the Deputy Commissioner, Ex. 26. It finally took effect from the 1st of July, 1924, and a new mahal known as mahal Kodi Lal of 16 annas was formed and it comprised the pre-empted share which now amounted to 12 annas of this mahal. 15. During the course of these proceedings in Revenue Courts a litigation was launched by Ahmad Hasan and his brothers in Civil Court. This was a suit against Bechu Sah for redemption of the mortgages and was based on the title acquired by virtue of the gift from Hadi Hasan and by inheritance from Mst. Asghari who had died on 24th April, 1922, vide Ex. A17, Bechu Sah denied the deed of gift and contended that Ahmad Hasan and other plaintiffs were not the sole heirs either of Hadi Hasan or of Mst. Asghari and were therefore not entitled to redeem. His other contentions need not be noticed for the purpose of this judgment, though we may mention that no defence was raised as to maintainability of the redemption suit by reason of pendency of partition proceedings. The suit was decreed by the Subordinate Judge Bara Banki, on 23rd January 1924, on a finding that Hadi Hasan's gift was not proved but that the plaintiffs could nevertheless redeem the mortgages on payment of Rs. 29,916/10/9 presumably because Mohammad Hasan had died by that time and the inheritance had devolved upon these men. No further action appears to have been taken there- after either by Ahmad Hasan and his brothers, or by Bechu Sah in connection with this redemption decree. 16. Bechu Sah died on 7th June, 1934, and he was succeeded by his three sons, one of whom was Kodi Lal appellant. Nothing of any importance took place in connection with the Akbarpur and Udaria properties till the passing of the Encumbered Estates Act. On 27th October, 1936, Ahmad Hasan along with his brothers, Mst. 16. Bechu Sah died on 7th June, 1934, and he was succeeded by his three sons, one of whom was Kodi Lal appellant. Nothing of any importance took place in connection with the Akbarpur and Udaria properties till the passing of the Encumbered Estates Act. On 27th October, 1936, Ahmad Hasan along with his brothers, Mst. Sarwar Jehan and Mst. Zohra Khatoon, his daughters and Mst. Zakia Khatoon, the wife of one of his brothers applied u/s 4 of the Encumbered Estates Act and on 9th November, 1936 the application was forward to the Special Judge u/s 6. In their written statement u/s 8 of the Act Ahmad Hasan and others entered amongst their proprietary rights liable to attachment and sale etc. their pre-empted shares in villages Akbarpur and Udaria also. It will be recalled that after the partition the 8 annas pre-empted share of village Akbarpur was equal to 12 annas of mahal Kodi Lai. The particulars of the share of Akbarpur as specified therein were somewhat inaccurate in as much as they not only mentioned in the list the 12 annas share along with its revenue as entered in khata No- 1/1, mahal Kodi Lal, but they proceeded to give its extent according to preparation khewat also and instead of saying that it was previously 8 annas they mentioned it as 5 annas 4 pies only. 17. Before we take up the main contentions raised on behalf of the appellant we think it advisable to dispose of an argument regarding the share of landlord debtors in village Akbarpur as entered in the list of properties in the aforesaid written statement It is urged on behalf of the appellants that what was intended to be entered was not the 12 annas of Akbarpur as per partition khewat but only 5 annas 4 pies as per old khewat. It is therefore claimed that by omission to include 2 annas- 8 pies old which is equal to 4 annas new this share must be held to belong to the objector. It may be noticed that the share entered in the list was the 12 annas share mentioned in the superior khata khewat No. l/l of mahal Kodi Lai. Its land revenue was stated to be Rs. 188-12-3. All these descriptions tally with the present khewat which was produced along with the application u/s 4. It may be noticed that the share entered in the list was the 12 annas share mentioned in the superior khata khewat No. l/l of mahal Kodi Lai. Its land revenue was stated to be Rs. 188-12-3. All these descriptions tally with the present khewat which was produced along with the application u/s 4. It was not necessary for the purposes of the written statement u/s 8 to specify the pre-partition share, and in our judgment the extent of the old share was in advertantly misdescribed apparently by a clerical error. The mis-description is hardly of any importance. It has not pre judiced the objector in any manner and, we think, the entry clearly relates to the entire pre-empted share of the village Akbarpur. 18. We will now examine the main arguments advanced by the learned Counsel for the appellant. His first contention is that Ahmad Hasan and others by including in their written statement u/s 8 the properties which had been allotted to him at the partition are seeking to disturb the proceedings of 1922-1924, and this they are not entitled to do by virtue of Section 233 (k) U. P. Laud Revenue Act. We may mention at this stage that in the replication filed by the landlords in the Court of the Special Judge on, 18th July, 1938, after referring to the pre-emption suits and the withdrawal of the pre-emption monies by Kodi Lal they said : In this way Mst. Asghari Khatoon and Chaudhri Hadi Hasan became tie owners of the shares in villages Udaria and Akbarpur mentioned in para 7 hereof. Chaudhri Hadi Hasan and Mst. Asghari Khatoon died. The applicants are their heirs and representatives and in this way the applicants and the objectors have the relations of mortgagors and the mortgagees on the basis of the mortgage deeds, mentioned in paras 5 and 8 hereof. 19. It is thus clear that the rights in which the landlords came to the Court of the Special Judge were founded by them not on the gift of Hadi Hasan which they had failed to establish in the partition proceedings and which had been negatived in the redemption suit but on the title acquired by inheritance through their father Mohammad Hasan. The right now set up was not available to Ahmad Hasan and his brothers till after the death of their father. It appears from Ex. The right now set up was not available to Ahmad Hasan and his brothers till after the death of their father. It appears from Ex. A18, the written statement filed by Bechu Sah in the redemption suit, that Mohammad Hasan was still alive on 6th September, 1922. The partition of Akbarpur commenced in the beginning of 1922 and the name of Mohammad Hasan was not in the khewat as a co-sharer. He could not therefore prefer any objections involving questions of proprietary title as a recorded co-sharer u/s 111 of the U. P. Land Revenue Act. In Bhagwan Dei v. Arjun Singh (1917) 30 O C 241 the late Court of the Judicial Commissioners held that Section 233 (k) of U. P. Land Revenue Act .is no bar to a suit brought by a person who had no locus standi to appear in and was no party to the partition proceeding. 20. In Khasay v. Jugla (1904) 28 All 432 it was laid down that the prohibition contained in section 233 (k) barred only suits instituted by a person who had an opportunity of having his objections considered u/s 111 and had not availed himself of it. A similar view was .taken in Shambhu v. Chet- ram (1914) 12 A L J 1017 and Mt. Khairunnissa Bibi Vs. Mt. Khairunnissa Bibi and Others . Mohammad Hasan was therefore -not bound by Section 111 Land Revenue Act from raising any question of proprietary title, and against him the completion of partition proceedings could not have the effect contemplated by Section 11.2. We have already mentioned that the title upon which the landlords now base their rights vested in them sub- sequent to the partition proceedings. It is not therefore possible to defeat that title by virtue of Section 233 (k) U. P. Land Revenue Act. A great deal of case law was cited by the learned counsel for the appellant in support of the proposition that where a question of proprietary right was not raised at all by a recorded co sharer in partition proceedings or was raised and decided against him it was no longer open to him to re-agitate the matter in Civil Court in consequence of the disability imposed by that section. Obviously the right which was repelled either expressly or by implication during the partition proceedings has been lost, but a new title through their father Mohammad Hasan having come into being subsequently it nevertheless subsisted and can be lawfully canvassed in Encumbered Estates Act proceedings. The cases therefore which relate to extinction of the right of a recorded co-sharer after ..partition proceedings have no relevancy and need not be considered. 21. The finding of the lower Court on issue No. 4 which related to the bar of Section 233, clause (k) is against the appellant on different grounds. In the first place having regard to the observations of the Commissioner which we have reproduced in an earlier part of this judgment the Special Judge considered that revenue Courts did not proceed u/s 111 to adopt any of the three courses therein provided. In the second place he was of the opinion that as the judgment of the redemption suit had held that inspite of the failure of gift, Ex. A27, the relationship of the mortgagor and mortgagee subsisted between Ahmad Hasan and his brothers on the one hand and Bechu Sah on the other Kodi Lal was now debar; ed from asserting proprietary title in the equity of redemption. We trunk no valid exception can be taken to the second view, but the first of these grounds is not S3und because the Commissioner's observations Ex. A 25 could not override the express legal prohibition as contained in Section 233 (k) U. P. Land Revenue Act, and it could not give jurisdiction to the Civil Court to undo the partition in face of that section, 22. We will now proceed to examine the next argument which relates to adverse - possession of the equity of redemption in respect of the 8 annas share in villages Akbarpur and of 2 annas 8 pies old share which is equal to 5 annas 4 pies now in village Udaria. After the pre-emption suits of Hadi Hasan and Ms*-. Asghari were decreed in 1911 and the monies were deposited, no action was taken under Order 21, rule 36, C. P. C. to obtain possession of the pre-empted property by Hadi Hasan, and it is therefore urged that limitation against Hadi Hasan commenced to run from 1911 and that it matured into prescriptive title by reason of Persistent denial of his rights for over twelve years. We have already mentioned the facts in this connection in general terms. It is now necessary to state them in somewhat greater detail. In 1919 when Hadi Hasan executed a deed of gift Ex. A27, the donee's effort to obtain mutation in respect of pre- empted share was defeated by the objector's plea based upon absence of proceedings to acquire symbolical possession by recourse to Order 21, rule 36, C P. C. In 1920-1921 in course of proceedings consequent on the application of Ahmad Hasan to be appointed lambardar of village Akbarpur a contest was raised by Kodi Lal who appeared as a witness and claimed to be in possession of the equity of redemption in spite of the pre-emption decrees. In 1922 a report was made by the Tahsildar for correction of khewat of Akbarpur and Udaria, and in the proceedings which arose thereon Kodi Lal again made a statement, Ex. A21, and objected to the removal of his name from the village papers. He stated that the dakhaldebani had not till then been effected and that limitation had expired. In 1924 an effort was again made by Ahmad Hasan and his brothers to obtain correction of khewats by means of their application Ex. 4, but on opposition of Kodi Lal the attempt was frustrated. In 1926 during the course of the third settlement of village Udaria Ahmad Hasan and his brothers once against sought to obtain correction but failed on account of similar objections raised by Kodi Lai. Finally there was the failure of the landlords applicant to obtain a declaration of their proprietary rights during the partition proceedings of 1922-1924. 23. We are of opinion that these facts cannot operate to extinguish the title of the landlords and to vest it in the objector. The joint family of which Bechu Sah was the manager held the position of a mortgagee. It has been found by the Court below, and the finding has not been contested before us, that the sale of the equity of redemption in the name of Kodi Lal was in reality a sale taken by the joint finally. By reason of the pre-emption decree the title to the equity of redemption was acquired by Hadi Hasan and Mst. Asghari. By reason of the pre-emption decree the title to the equity of redemption was acquired by Hadi Hasan and Mst. Asghari. Order 20, rule 14, C. P. C, provides that on the payment into Court of the purchase money together with costs on or before the date specified in a pre- emption decree the defendant shall deliver possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment. In our opinion the title so acquired by Hadi Hasan and Mst. Asghari could not be defeated by the joint family or by Kodi Lal on the ground of adverse possession by the mere fact that symbolical delivery of possession was not taken by the . pre- emptors under Order 21, rule 36, C. P. C. Nor could it be defeated by reason of the failure of Ahmad Hasan and others to obtain mutation or to secure correction of papers. The conduct of Kodi Lal in withdrawing the pre-emption monies would indicate that he accepted the decrees and the possession of the equity of redemption should be deemed to have automatically passed to the pre-emptors. We do not doubt that such possession could have been delivered out of Court. We are of opinion, that in the circumstances of the case, no action under Order 21, rule 36, C. P. C. was called for. From 1911 to 1920 apparently nothing was done by Kodi Lal to indicate that he still retained the possession of the equity of redemption. 24. The only acts of Kodi Lal to which the alleged adverse possession is referable consisted in contests raised by him in Revenue Courts from time to time on an unfounded assertion that he was still in possession. Adverse possession of the equity of redemption must be referable to some acts, or dealings with the equity as distinct from the subject matter of the mortgage. More assertion in judicial proceedings of a title which is unfounded at the date when it is made cannot support a plea of prescriptive acquisition vide Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) 50 I A 202. The absence of mutation in favour of Hadi Hasan and Msf. More assertion in judicial proceedings of a title which is unfounded at the date when it is made cannot support a plea of prescriptive acquisition vide Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) 50 I A 202. The absence of mutation in favour of Hadi Hasan and Msf. Afghan out not render in incumbent on the pre-emptors to institute a suit for a declaration of their title, We may in this connection refer to the Privy Council case of Khaiarajtnal v. Daim (1905) 82 I A 23. The issue there raised was whether a suit for redemption was barred by adverse possession for more than 12 years by the purchasers of the equity of redemption at an execution sale. Their Lordships proceeded to see whether there had been separate dealings with the equity of redemption as distinct from the subject matter of property. On a review of the facts they found that the possession had been that the mortgagee throughout. They held therefore that the question at issue was exclusively one between the mortgagor and the mortgagee, and as between them neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years, nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption could be a bar or defence to a suit for redemption if the parties were otherwise entitled to redeem. The general principle therefore that a mortgagee who has entered into possession of the mortgaged property cannot during the subsistence of the mortgage convert the nature of his possession into that of a fall owner must be applied. 25. In the proceedings of 2nd December, 1938, the pleader for Kodi I .at sought to found his client's; adverse possession on the following facts : (a) He granted leases to tenants and cut trees, (b) He contested the claim of Ahmad Hasan and others to ownership whenever an assertion of it was made. (c) He secured the partition of the village Akbarpur. 26. The acts mentioned in the first category are referable to the lawful possession of the family as mortgagee of the property. Those in the second group are insufficient to afford a ground for acquisition of prescriptive title. The partition proceedings referred to in the third group are, we have held already, of no avail. 27. 26. The acts mentioned in the first category are referable to the lawful possession of the family as mortgagee of the property. Those in the second group are insufficient to afford a ground for acquisition of prescriptive title. The partition proceedings referred to in the third group are, we have held already, of no avail. 27. We are clear, therefore that the circum- stances upon which the plea of adverse possession is made to depend cannot sup- port the appellant's title. We accordingly overrule the contention urged on behalf of the appellant and hold in agreement with the Court below that the title of the land- lords-applicants or their predecessors has not been extinguished by prescription. 28. The result is that this appeal must fail and is accordingly dismissed with costs.