JUDGMENT D.N. Roy, J. - This is a second appeal arising out of a suit for possession over a house situate in abadi plot No. 6144 specified by ABCD in the sketch map annexed to the plaint and for an injunction restraining the defendants from interfering with the plaintiff's passage to the house in an adjoining plot and further restraining them from preventing the plaintiffs from executing repairs to their house from the side of that passage. A claim for mesne profits was also made. The parties to the suit are descended from one Girdhar Singh who had five sons. The zamindari in village Nagra and the residential quarter known as 'Kot' belonged originally to Girdhar Singh and had later on come to his descendants. The plaintiffs represented the branch of Binayak Prasad Singh who was the son of Govind Narain Singh, one of the sons of Girdhar Singh. The descendants Nos. 1 to 4 represented the branch of Lachhmi Narain Singh, another son of Girdhar Singh; Defendants Nos. 5 to 9 represented the branch of Gopal Narain Singh; defendants Nos. 10 to 16 represented the branch of Sri Narain Singh and defendants Nos. 17 to 27 represented the branch of Jai Sri Narain Singh, who were also the sons of Girdhar Singh. The appeal is filed by Matukdeo Narain Singh, who was defendant No. 1 in the suit. 2. In the year 1933 Binyak Prasad Singh filed an application in the revenue Court for the partition of the zamindari property along with the Kot referred to above. An imperfect partition was effected in this partition suit between the co-sharers in 1941. Five pattis were formed. Patti No. 1 went to Binyak Prasad Singh; Patti No. 2 went to Mathura Prasad Singh and Pattis Nos. 3, 4 and 5 went to the other branches of Gopal Narain Singh, Sri Narain Singh and Jai Sri Narain Singh. The site of the Kot on which the houses existed was also divided as amongst these five pattis. Sub-plot 614A was allotted to path No. 1 as also the house which existed over it, which was the subject-matter of the present plaint. The passage to this house stood over plot No. 590 and that passage was also allotted to Patti No. 1. Sub-plot 614A was allotted to path No. 1 as also the house which existed over it, which was the subject-matter of the present plaint. The passage to this house stood over plot No. 590 and that passage was also allotted to Patti No. 1. In the scheme of partition that was prepared by the revenue Court it was recorded that each co-sharer will be entitled to get the building which stood on the site which was allotted to him. On the 3rd of May 1942 Binayak Prasad Singh executed a deed of will in favour of the present plaintiffs. The plaintiffs thus became entitled as legatees to the property held by Binayak Prasad Singh. The plaintiffs came to Court upon the allegation that on the 13th of November 1934 when the partition proceedings were still pending Mathura Prasad Singh and Matukdeo Narain Singh dispossessed Binayak Prasad Singh from this house. They contented that in view of the partition made by the revenue Court and in view of the circumstances stated above the suit filed on the 13th of November 1946 was within time and they were entitled to the reliefs stated above. 3. Matukdeo Narain Singh defendant No. 1 resisted the suit on the ground that the plaintiffs were not the heirs or legatees of Binayak Prasad Singh and that they were not entitled to use in respect of the house. He contended that the partition proceedings were binding upon the parties and since the defendant had been in possession over the house the plaintiffs were not entitled to dispossess him. He further contended that the suit was barred by limitation under Articles 142 and 144 of the Limitation Act. 4. The learned Munsif found that the defendant's contention that plaintiffs Nos. 2 to 5 are not the daughter's sons of Binayak Prasad Singh is incorrect. He, however, held that the defendants are owners and in possession of the house in suit and the plaintiffs have no right to get them ejected. He further held that under the partition by the revenue Court the site alone of the house in suit was allotted to the plaintiffs whilst the possession of the defendant over the house in suit was maintained and hence under Sec. 118 of the Land Revenue Act the plaintiffs were not entitled to get possession of the house which must remain with the defendant. No issue as to limitation was framed by the trial Court and no finding was given. Against the order of dismissal of the suit by the trial Court appeal was taken before the lower appellate Court and two principal questions were raised, namely, (1) Whether only the site of the house in suit was allotted to the plffs. under the revenue Court partition and the house was reserved for the defendant? If so, what is its effect on the plaintiffs' right to eek possession of the disputed house? (2) Whether the defendant is the owner in possession of the house in suit by lining in possession thereof for more than 12 years and has completed his exclusive title and whether the suit is barred by Articles 142 and 144 of the Limitation Act? 5. On the first question the lower appellate Court relying upon the scheme of partition contained in Ex. 1, clause 8, and also upon the facts and circumstances of the case and the evidence on the record came to the conclusion that under the partition by the Revenue Court the site of the houses as also the house itself was allotted to the plaintiffs and that the provisions of Sec. 118 of the Land Revenue Act did not apply to the case. The lower appellate Court held in the alternative that even if the provisions of Sec. 118 of the Land Revenue Act were to be applied to the case it does not help the defendant. On the second question the lower appellate Court was of the view that actual physical possession over the house was with the plaintiffs up to the 13th of November 1934 and that the suit having been filed on the 13th of November 1946 was within time. The lower appellate Court therefore allowed the appeal and decreed the suit for possession, injunction, Rs. 300/- as damages and for costs. Defendant No. 1 filed this second appeal against that decision. The appeal came up before a learned single Judge who by his order dated the 22nd of February 1957 referred it to a Bench for decision on account of certain apparent conflict of authorities over Sec. 118 of the Land Revenue Act. 6. It is not disputed that plot No. 6144 and plot No. 590 were allotted in the partition of Binayak Prasad Singh in the year 1941. 6. It is not disputed that plot No. 6144 and plot No. 590 were allotted in the partition of Binayak Prasad Singh in the year 1941. Whereas it was contended on behalf of the plaintiffs that the house which stood over plot no. 614A specified by letters ABCD in the sketch map annexed to the plaint had also been allotted in the partition to Binayak Prasad Singh, the deft. on the other hand contended that despite that allotment it was noted in the khasra prepared at that time that the house was in the possession of defendant No. 1. On this it has been argued that having regard to the provisions of Sec. 118 of the Land Revenue Act the possession of defendant No. 1 cannot be disturbed. That section provided that "If, in making a partition, it is necessary to include in the portion allotted to one co-sharer the land occupied by a dwelling house or other building in the possession of another co-sharer the latter shall be allowed to retain it with the buildings thereon on condition of his paying for it a reasonable ground-rent to the co-sharer in whose portion it may be included." The section further provided that the "limits of such land and the rent to be paid for it shall be fixed by the Collector." 7. The plain language of the section would make it clear that it contemplates those cases only where the site is allotted to one co-sharer, and the building standing over it is not allotted to that co-sharer but is allotted to some other co-sharer, in which event that other co-sharer who has that building in his possession will be entitled to retain it on condition of his paying for it a reasonable ground rent to the co-sharer in whose portion the site may be included. Sec. 118 of the Land Revenue Act, 1901 will not apply to a case where the site and the building are both allotted to one and the same co-sharer even though the building may for the time being in possession of another co-sharer. In order to get over that difficulty the defendant has contended that the revenue Court had no jurisdiction to partition the building and that the allotment of the building to Binayak Prasad Singh was of no consequence whatsoever. In order to get over that difficulty the defendant has contended that the revenue Court had no jurisdiction to partition the building and that the allotment of the building to Binayak Prasad Singh was of no consequence whatsoever. An objection of that nature was never raised before the partition Court when the partition scheme was sanctioned. We have been referred to the objection that was raised by the present defendant in the partition proceedings and we find that what he had alleged there was not that the houses could not be partitioned but that this particular house should not go to Binayak Prasad Singh because he had been given another house over a different plot. Apart, therefore, from the fact that an objection that the revenue Court had no right to partition the house had not been raised before the partition Court it seems that no application was made to the Collector by the defendant for permission to retain the building in question and no offer was made by him to pay a reasonable ground rent therefore. In the written statement filed in the present suit the defendant No. 1 said that the partition proceedings were binding over the parties. The exact words of paragraph 8 of the additional pleas of the written statement of defendant No. 1 may be quoted. They are: "Yeh ki ba muqadma batwara yeh tai ho gaya hai ki Babu Binayak Prasad Singh ka koyi quabza dakhal makan nizayi par nahin hai. Chunanche batwara ke taisale ki puri paebandi jumla hissedaran par hai. Ab uske khilaf muddaiyan ko koyi mansab dawa haza ka nahin hai. Dawa muddaiyan me dafa 11 ariz hai." There too defendant No. 1 did not say that the partition of the house by the revenue Court was without jurisdiction. He relied only on the fact that possession of Binayak Prasad Singh over the house was not found at the time of the partition by the revenue Court. In view of all that, and in view of the fact that defendant No. 1 acquiesced in the partition, it would be idle to contend that defendant No. 1 would be entitled to say that the allotment of the house was without jurisdiction and was therefore not binding upon him and that even in spite of that allotment he would be entitled to retain possession of the house. 8. 8. Learned counsel for the appellant has relied upon the decision in Durga v. Khagga, 1937 O.W.N. 591 to support his contention that because he was found to be in possession over this house in the partition proceedings, therefore having regard to Sec. 118 of the U. P. Land Revenue Act defendant No. 1 would be entitled to retain it and the plaintiffs have no right to dispossess him and that the fact that the ground rent has not been assessed does not deprive the defendant of his right to retain possession of the house. 9. The earliest case on the subject appears to be that of Iswar Prasad v. Jagarnath Singh, 1906 All. W.N. 194. There in accordance with a partition made among co-sharers in the year 1901 under the orders of the revenue authorities certain buildings erected by the defendants while the property was undivided fell into the plaintiff's share. No ground rent was fixed under Sec. 124 of the Land Revenue Act, 1873. The plaintiffs sued for recovery of possession of the land covered by the defendant's buildings for their demolition. It was held that the fact that the land occupied by the defendant's buildings had been allotted to the plaintiffs on partition conferred on the latter no right to seek for their demolition though it was still open to the plaintiffs to ask the revenue authorities to assess the ground rent on the defendant's premises. 10. It may be noted that even in that case the building had not been allotted to the plaintiffs. The next case in which Sec. 118 of the U. P. Land Revenue Act, 1901 came up for consideration was Babu Nandan Pat Tewari v. Radha Keshun Kalwar, (1910) 5 I.C. 664. In that case at the partition of a village the site of a building occupied by one of the co-sharers was allotted to another co-sharer. No application was made on behalf of the occupant of the house to the Collector expressing his intention to retain the building on payment of a ground rent. It was held that after the partition he was not entitled to remain in possession of the building.' It was further held that 'when partition has been effected by the Revenue Court, the parties are bound by the provisions contained in the order of partition and. It was held that after the partition he was not entitled to remain in possession of the building.' It was further held that 'when partition has been effected by the Revenue Court, the parties are bound by the provisions contained in the order of partition and. they cannot, in a 'subsequent Civil Suit, go behind the partition.' The Bench deciding that case observed: "The site of the house was, as we have said, allotted to the plaintiff and no reservation was made of any right of residence by the defendant. In view of this it is idle to contend that the defendants have any right whatever to remain in possession of the site of the house." Sec. 118 of the Land Revenue Act again came to be considered by a Full Bench of this Court in Sarup Lal v. Lala, XV A.L.J. R. 757 In that case the earlier decision in Iswar Parshad v. Jagarnath Singh, 1906 All. W.N. 194 was followed and the decision in Babu Nandan Pat Tewari v. Radha Keshun Kalwar, (1910) 5 I.C. 664 was distinguished. That was a suit for possession over a house. The house stood on a plot of land which under a partition which took place between the defendant and the predecessors-in-title of the plaintiffs was allotted to the share of the former. The defendant dispossessed the plaintiffs from the house and thereupon the suit was brought for recovery of possession of the house. The Court of the first instance decreed the claim and that decree was affirmed by the first appellate Court. The defendant preferred an appeal in this Court and his contention was that under Sec. 118 of the Land Revenue Act the plaintiffs were not entitled to recover possession inasmuch they did not get rent assessed on the site at the time of the partition. The defendant preferred an appeal in this Court and his contention was that under Sec. 118 of the Land Revenue Act the plaintiffs were not entitled to recover possession inasmuch they did not get rent assessed on the site at the time of the partition. It was held that having regard to the provisions of Sec. 118 if the site of a house occupied by a co-sharer be allotted to the share of another co-sharer that fact alone would not deprive the owner of the house from retaining it with the building thereon, that his liability would be to pay rent for the site on which the building stood; that the presumption would be that where a partition has been effected and the site of the house of one co-sharer has been allotted to the share of another co-sharer the owner of the house is to retain possession of the house; and that the mere fact that rent was not assessed cannot deprive the owner of the house of his right to it. In that case stress was laid upon the fact that the house was not reserved to the plaintiffs and it was observed: "In the absence of any evidence to the contrary the presumption will be that the law was complied with. Therefore the plaintiffs are the owners of the house in dispute and the defendants have no right to dispossess them." 11. The decision in Ishwar Parshad v. Jagarnath Singh, 1906 All. W.N. 194 was distinguished on the ground that in that case there was a clear non-reservation of the ownership of the house. In the instant case there was a clear reservation in favour of the plaintiffs and in partition the site together with the house was allotted to Binayak Prasad Singh, the predecessor-in-title of the plaintiffs. Consequently, even upon this Full Bench decision we think that the case has been correctly decided by the lower appellate Court in the application of Sec. 118 of the U.P. Land Revenue Act to the facts of this case. The other case which has been cited before us is the tease of Chandra pal Singh v. Nagesar Singh, 104 I.C. 197 in which the Full Bench decision in Sarup Lal v. Lala, XV A.L.J. R. 757 was followed. 12. The other case which has been cited before us is the tease of Chandra pal Singh v. Nagesar Singh, 104 I.C. 197 in which the Full Bench decision in Sarup Lal v. Lala, XV A.L.J. R. 757 was followed. 12. In Durga v. Khagga, 1937 O.W.N. 591 which has been strongly relied upon by learned counsel for the appellant, there was no reservation of the nature as is contained in the present case. On that ground alone the decision in Durga v. Khagga, 1937 O.W.N. 591 may be distinguished from the facts of the present case. In view of what we have said above we are of opinion that the conditions requisite for the application of Sec. 118 of the Land Revenue Act were not satisfied in the case and consequently the plaintiff's suit for recovery of possession over the house could not be defeated. Coming now to the question of Limitation, it appears that this property was joint property of the parties till 1941 when the partition was finalised. The suit having been filed in 1946 could not be said to be barred by twelve-year limitation either under Articles 142 or 144 of the Limitation Act. Learned counsel has contended that the plaintiffs were dispossessed on the 13th of November 1934 when the partition proceedings were still pending and therefore if limitation is reckoned even from that date the suit was certainly within time on the 13th of November 1946 when it was filed as twelve years had not expired by that date. The suit was therefore not barred by limitation under Articles 142 and 144 of the Limitation Act. The appeal, must therefore fail. 13. There is a cross-objection by the other side and it is about the mesne profits, pendente Lite and future. The plaintiffs had claimed mesne profits at the rate of Rs. 180/- a year. The lower appellate Court allowed the mesne profits at the rate of Rs. 1001- per year holding that the rate at which the claim was laid by the plaintiffs was somewhat exaggerated. The lower appellate Court did not pass any orders in regard pendente lite and future mesne profits. 180/- a year. The lower appellate Court allowed the mesne profits at the rate of Rs. 1001- per year holding that the rate at which the claim was laid by the plaintiffs was somewhat exaggerated. The lower appellate Court did not pass any orders in regard pendente lite and future mesne profits. So far as the rate is concerned, we are satisfied that the rate allowed by the lower appellate Court was just and correct and it does not admit of any increase, but it seems to us that the lower appellate Court erred in omitting to grant a decree for pendente lite and future mesne profits at the rate at which it allowed mesne profits for the period antecedent to the suit. The cross-objection must therefore be allowed in part, namely, that the plaintiffs would get pendente lite and future mesne profits at the rate of Rs. 100/- per year. The total amount will be determined in the execution department under Order XX, Rule 12 of the Code of Civil Procedure and the necessary court fee over such amount will have to be paid by the plaintiffs in those proceedings. 14. In the result the appeal is dismissed with costs and the cross-objection is allowed in part as mentioned above; but in respect to the cross-objection the parties will bear their own costs. The stay order dated the 11th of May 1951 is discharged.