ORDER K.B. Asthana, J. - The dispute in this appeal relates to certain agricultural plots. The Plaintiff Respondent, Syed Sharafat Husain, as Mutwalli brought the suit giving rise to this appeal in the court of the Civil Judge, Basti for joint possession of the suit plots claiming to be a co-Bhumidhar thereof along with the Defendants first set. A decree for possession was, in the alternative and if found necessary, claimed against Defendants second set who were allegedly the lessees from the Defendants first set of the disputed plots. 2. Syed Inayat Husain, the grandfather of the Plaintiff, was co-sharer of two annas nine pies share in various villages. The remaining share of thirteen annas seven pies belonged to Raja Shohrat Singh, the predecessor-in-title of the Defendants first set. Syed Inayat Husain executed an usufructuary mortgage on 22-3-1899 in favour of Raja Shohrat Singh of his one anna nine pies share. Then by another usufructuary mortgage dated 8-5-1905 Inayat Husain mortgaged the remaining share of one anna in favour of Raja Shohrat Singh. Inayat Husain then executed a Waqf of all his property by means of a waqf deed dated 16-5-1906 and by a Tauliyatnama executed on 13-6-1913 appointed Plaintiff as one of the Mutwallis along with one Syed Baqar Husain. A subsequent mortgage of the same share of the property was executed by Baqar Husain as Mutwalli in favour of Raja Shohrat Singh on 18-9-1920. The Plaintiff, as Mutwalli, then brought suits for redemption of the mortgages and all the mortgages were redeemed in 1949 on payment of the mortgage debt found due. The Plaintiff as Mutwalli got proprietary possession but not over any specific plot. The Plaintiff then brought the instant suit as Mutwalli on the allegation that the plots in dispute were part of the mortgaged property and the Plaintiff as Mutwalli of the waqf had a share in the disputed Sir and Khudkasht plots along with the Defendants first set. It was alleged that the suit plots were Sir and Khudkasht of the mortgagor at the time of the mortgage and even if it were found that the Sir and Khudkasht rights were acquired by the mortgagees on the said plots during the subsistence of the mortgage the acquisition of those rights would be for the benefit of all the co-sharers and the Plaintiff as Mutwalli would become a joint Sir and Khudkasht holder. Certain other Defendants were also impleaded as they claimed to be lessees from the mortgagees and it was pleaded that the leases in their favour were fictitious and were made during the pendency of the suits for redemption in order to deprive the Plaintiff of his rights in the suit plots. It was also alleged that after the abolition of the Zamindari the Plaintiff became a co-Bhumidhar of the Sir and Khudkasht plots in dispute and was entitled to joint possession thereof. 3. The suit was contested by all the Defendants except Defendant no. 8 who was impleaded pro forma being the son of Baqar Husain, the co-Mutwalli who had since died. It was pleaded that before the mortgage was executed the disputed plots were Sir of the Defendants and in any case the Sir and Khudkasht rights having been acquired by them as proprietors or Zamindars even during the subsistence of the mortgage, no right in favour of the mortgagors could accrue and the Plaintiff was not entitled to joint possession. The Defendants first set claimed that they were the exclusive Bhumidhars of the suit plots after the abolition of the Zamindari. The defence of the lessees was that the leases in their favour were genuine and they were the Sirdars of the plots. Defendant No. 7 Mahendra Singh who was one of the servants of Shohrat Singh raised a further defence that he being in cultivatory possession of two of the plots in suit in 1359 F. acquired Adhivasi rights therein which ripened into Sirdari and the Plaintiff was not entitled to joint possession thereof. All the Defendants pleaded that the suit of the Plaintiff was barred by limitation. A plea was also raised that there was no waqf in existence and the Plaintiff was not the Mutwalli. Certain other pleas were also raised by the parties which need not be mentioned as nothing turns upon them in this appeal. 4. The trial court framed the necessary issues. One of the issues was whether the Defendant No. 7 acquired Adhivasi rights in two of the plots in dispute. This issue was referred to the revenue court which did not return any definite finding. 5. 4. The trial court framed the necessary issues. One of the issues was whether the Defendant No. 7 acquired Adhivasi rights in two of the plots in dispute. This issue was referred to the revenue court which did not return any definite finding. 5. The learned Civil Judge who tried the suit, on the evidence on record, oral and documentary, found that the Plaintiff was the mutwalli, that all the leases executed by the Defendants first set were fictitious and the lessees never got possession of the disputed plots which all along remained in possession of the Defendants first set, the mortgagees. He also found that Sir and Khudkasht rights in the disputed plots were acquired by the mortgagees during the subsistence of the mortgage and the claim of the Plaintiffs that they were the Sir and Khudkasht of Inayat Husain, the mortgagor, or that they were Sir and Khudkasht of Shohrat Singh, the mortgagee at the time when the mortgages were executed was not established. A finding was also recorded that the Sir and Khudkasht rights in the disputed plots having been acquired by Shohrat Singh during the subsistence of the mortgage joint rights would be created in the same by virtue of Section 63 of the Transfer of Property Act read with Section 90 of the Indian Trusts Act thus the Plaintiff was also a joint Sir and Khudkasht holder and after the abolition of the Zamindari became co-Bhumidhar along with the Defendant first set, the successors of Shohrat Singh. On the question whether the suit was barred by limitation it was held by the Court of first instance that it was not barred. The result was that the suit of the Plaintiff was decreed in toto. 6. From the decree of the court of first instance the Defendants first set and Mahendra Singh Defendant No. 7, filed an appeal. Before the appellate court it was found that in one of the villages in which some of the suit plots were situate consolidation proceedings had started and when the decree was passed by the trial court the consolidation proceedings were going on. The learned Judge of the lower appellate court held that the decree in regard to those plots would be without jurisdiction and the appeal remained confined to plots in other villages in which consolidation proceedings had not taken place. 7. The learned Judge of the lower appellate court held that the decree in regard to those plots would be without jurisdiction and the appeal remained confined to plots in other villages in which consolidation proceedings had not taken place. 7. The material questions which arose for consideration in the appeal before the lower appellate court were: (1) whether the Plaintiff's suit was barred by limitation; (2) whether the provisions of Section 90 of the Indian Trusts Act were attracted to the facts and circumstances of the case; and (3) whether Mahendra Singh, Defendant No. 7 acquired Adhivasi rights in two of the plots in dispute ripening into Sirdari rights. The learned Judge of the lower appellate court affirmed the findings of the trial court on the above three main questions and dismissed the appeal. The Defendants first set and the Defendant No. 7 Mahendra Singh have now come up in second appeal from this; decree of the lower appellate court. 8. At the outset I would dispose of the case of Mahendra Singh, Defendant No. 7, relating to his claim of Adhivasi rights on two of the plots in suit. I may observe that the learned Counsel for the Appellants has not seriously pressed the appeal of Defendant No. 7 in view of the concurrent finding of fact recorded by the courts below to the effect that Mahendra Singh was never in cultivatory possession of the said plots and the entry in the Khatauni of 1359F. did not confer upon him any right. The finding of fact recorded by the courts below is not shown to be vitiated. Mahendra Singh, therefore, cannot claim to be the Sirdar of the said two plots as the provisions of the U.P. Supplementary Land Reforms Act of 1951 would not be attracted so as to confer upon him the right of an Adhivasi subsequently ripening into the right of Sirdari under the UP ZA and LR Act. 9. The main points which were urged by the learned Counsel for the Defendant Appellants related to the question of the applicability of Section 90 of the Indian Trusts Act and the question of limitation. 10. 9. The main points which were urged by the learned Counsel for the Defendant Appellants related to the question of the applicability of Section 90 of the Indian Trusts Act and the question of limitation. 10. It was urged by the learned Counsel for the Appellants that Shohrat Singh being a Zamindar and proprietor the acquisition by him of Sir and Khudkasht rights in the plots even during the subsistence of the mortgage would be in his own right as proprietor and not as mortgagee, therefore, the Plaintiff could not, in law, take the benefit of Section 90 of the Indian Trusts Act and Section 63 of the Transfer of Property Act. Reliance was placed by the learned Counsel on a decision of the Privy Council in the case of AIR 1932 199 (Privy Council) . The learned Judge of the court below took the view that Shohrat Singh did not cease to be a mortgagee though he was a proprietor also of a moiety share in the Mohal along with Inayat Husain therefore Inayat Husain or his successor as mortgagor on redemption would be entitled to the benefit of the accession of Sir and Khudkasht rights by the mortgagee which was a special advantage acquired by him by reason of his position as mortgagee. The learned Judge of the court below referred to the case law and his view finds support from Nageshwari Rai Vs. Nand Lal and Others, AIR 1926 All 67 and Punjab Sugar Mills Company v. Lakshman Prasad 1937 AWR 372. It was held in these cases that when a co-sharer acquires Sir and Khudkasht rights or planted a grove in his dual capacity as a co-sharer and as a mortgagee as well he cannot be said to have acquired these rights as co-sharer only and those rights would be governed by Section 63 of the Transfer of Property Act and Section 90 of the Trusts Act. In the Privy Council case Sorabjee v. Dwarkadas Ranchhoddas (supra) relied upon by the learned Counsel for the Appellants it will be found that the accession or acquisition of rights was in the capacity of a co-sharer or proprietor alone and not in dual capacity as in the instant case. It will be found on facts in that case that the mortgagor had sold his interests to the mortgagee. It will be found on facts in that case that the mortgagor had sold his interests to the mortgagee. No mortgage was existing at the time when the co-sharer who was at one time the mortgagee acquired the rights. The mortgagor re-purchased his interest in the properties and then claimed the benefit of Section 90 of the Trusts Act. It was in those circumstances that the Privy Council negatived the claim. Thus in the case of Sorabjee v. Dwarkadas Ranchhoddas (supra) the acquisition was not made in dual capacity as a co-sharer and mortgagee but in the single capacity of a co-sharer. Obviously no question of applicability of Section 63 of the Transfer of Property Act and Section 90 of the Trusts Act would arise in that case. I cannot find any legal fault with the view taken by the court below on this question as it is in accordance with the decisions of this Court which have not been shown to have been over-ruled by the learned Counsel for the Appellants. 11. Now coming to the question of limitation, it would be seen that it was the common case of the parties in the court below that the possession of the Defendants first set became unauthorised on the redemption of the mortgages, that is, some time in October 1949. It is somewhat doubtful if that could be the legal position. On the redemption of the mortgage the status of the successors of Shohrat Singh ceased to be that of mortgagee but their status as co-sharer or co-proprietor did not cease. As I understand the law a co-sharer is considered to be in possession of every inch of the land. How then could possession of the Defendants first set be unauthorised? If, however, it were found that the Defendants first set after the redemption of the mortgage claimed exclusive possession and denied the right of their other co-sharer, that is, the Plaintiff, then a different situation would arise. Assuming that is the position, then the Plaintiff could only claim joint possession or partition. If, however, it were found that the Defendants first set after the redemption of the mortgage claimed exclusive possession and denied the right of their other co-sharer, that is, the Plaintiff, then a different situation would arise. Assuming that is the position, then the Plaintiff could only claim joint possession or partition. The argument of the learned Counsel for the Appellants is based on the assumption that no suit having been filed by the Mutwalli u/s 180 of the U.P. Tenancy Act 1939 for ejectment or recovery of possession the Mutwalli's rights were extinguished on 30-9-1952 and the Mutwalli could not acquire Bhumidhari rights in the disputed land under the UP ZA and LR Act. I doubt the validity of this assumption. However, assuming that a suit could be filed u/s 180 of the U.P. Tenancy Act 1939 its limitation would be governed by the entry at serial No. 18(2)(b) of Schedule IV of group B which lays down that the suit must be filed within two years from 1st July following the date of unauthorised occupation. Taking the unauthorised occupation to be from October 1949 when the mortgages were redeemed the period of limitation will start running from 1-7-1950. Thus the suit would be within limitation if it were filed on 1-7-1952. I do not agree with the contention of the learned Counsel for the Appellant that limitation would expire on 30-6-1952. On all principles of reckoning of time the date 1st July has to be excluded. The court below has taken the correct view. Thus the right of the Plaintiff was not extinguished when the UP ZA and LR Act came into force on 1-7-1952. 12. It was then argued on behalf of he Appellants that in any case the suit ought to have been filed by the Plaintiff within two years of the date of vesting, that is, within two years of 1-7-1952 and the suit having been filed on 4-7-.955 would be barred. The learned Counsel for the Plaintiff Respondent on the other hand contended that under the JP ZA and LR Act the period of limitation for filing a suit u/s 209 of that act is three years from the date of vesting, therefore, the suit as filed on 4-7-1955 was within limitation, 1st, 2nd, 3rd July 1955 being holidays. The learned Counsel for the Plaintiff Respondent on the other hand contended that under the JP ZA and LR Act the period of limitation for filing a suit u/s 209 of that act is three years from the date of vesting, therefore, the suit as filed on 4-7-1955 was within limitation, 1st, 2nd, 3rd July 1955 being holidays. This is countered by the learned Counsel for the Appellants on the ground that the original period prescribed under the UP ZA and LR Act was two years and the provision of extension of limitation to three years was brought by an amendment in April 1955 and this amendment not being retrospective the Defendants' rights as acquired by them u/s 210 of the UP ZA and LR Act in July 1954 being a vested right could not be affected. In this connection reliance was placed on a Division Bench case of this Court in Unchan Singh v. Board of Revenue 1962 AWR 26. I think there is no substance in the argument of the learned Counsel for the Appellants. The assumption underlying it that the provisions of Section 209 of the UP ZA and LR Act applied is not legally tenable. Section 209 of the UP ZA and LR Act does not contemplate a suit between co-sharers as no co-sharer can be said to be taking or retaining possession of land otherwise than in accordance with the provisions of the law and without the consent of the Bhumidhar or Sirdar. A co- sharer is presumed to be in possession of every inch of the land and the possession of one co-sharer cannot be said to be adverse to another. In the case of Ram Dass v. Board of Revenue 1966 AWR 802 S.N. Singh, J. held that there cannot be ejectment of a co-tenure holder by another co-tenure holder. The co-tenure holder can get a decree for joint possession only and further the possession of one co-sharer cannot be said to be otherwise than in accordance with the law because he had a right to be in possession by virtue of his title as co-tenure holder. The co-tenure holder can get a decree for joint possession only and further the possession of one co-sharer cannot be said to be otherwise than in accordance with the law because he had a right to be in possession by virtue of his title as co-tenure holder. My attention was drawn by the learned Counsel for the Appellants to the decision of G.C. Mathur, J. in the case of Gajadhar Singh v. Board of Revenue 1967 AWR 232 , but that was a decision on Section 180 of the U.P. Tenancy Act and not on Section 209 of the UP ZA and LR Act. Certainly it can be conceded that in certain circumstances a co-sharer could sue for ejectment another co-sharer u/s 180 of U.P. Tenancy Act if the co-sharer sued had no right to cultivate the land and trespassed thereon. Moreover, under the scheme of Sections 209 and 210 of the UP ZA and LR Act it would be seen that it is a suit for ejectment which is contemplated and not a suit for joint possession or partition. Non-filing of a suit for ejectment entails certain consequences which are given in Section 210 of the said Act and where the land forms part of the holding of a Bhumidhar then the person taking possession or retaining possession on the failure to file a suit u/s 209 would become a Sirdar thereof. That goes to show that Sections 209 and 210 do not contemplate a suit between co-tenure holders or co-Bhumidhars. If a co-Bhumidhar does not sue the other co-Bhumidhar then u/s 210 it would be ridiculous to hold that the co-Bhumidhar who had taken or retained possession would become Sirdar. I do not think that the provisions of Sections 209 and 210 of the UP ZA and LR Act are attracted to the facts and circumstances of the instant case. Thus the very assumption underlying the argument of the learned Counsel for the Appellants disappears. No vested right accrued in favour of the Defendants first set to the exclusion of the Plaintiff. On the date immediately preceding the date of vesting the Plaintiff as Mutwalli being a joint Sir and Khudkasht holder would become co-Bhumidhar u/s 18 of the UP ZA and LR Act and could always sue for joint possession. No vested right accrued in favour of the Defendants first set to the exclusion of the Plaintiff. On the date immediately preceding the date of vesting the Plaintiff as Mutwalli being a joint Sir and Khudkasht holder would become co-Bhumidhar u/s 18 of the UP ZA and LR Act and could always sue for joint possession. Such a suit will lie in the civil court and twelve years rule of limitation will apply, as such a suit is not contemplated u/s 331 of the UP ZA and LR Act. I hold, therefore, that the suit of the Plaintiff was within limitation. 13. Then an argument was raised by the learned Counsel for the Appellants that by virtue of Section 15 of the UP ZA and LR Act the Defendants first set having been found always in possession of the disputed plots will become Sirdar of the land comprised in the share of the Plaintiff. As no such plea was raised in the written statement by the Defendants first set and no point was raised in the courts below during the trial and appeal, I would not be justified in allowing this point to be raised for the first time in second appeal. 14. It was lastly suggested that there were admittedly two types of plots in dispute, namely Sir plots and Khudkasht plots. The Defendants first set being in cultivatory possession of all the plots, including the Khudkasht plots, would become the Bhumidhars of the Khudkasht plots to the exclusion of the Plaintiff. Reliance was placed on the case of Ramakant Singh v. Dy. Director of Consolidation 1965 AWR 125 ; No such point was raised in the courts below nor pleaded specifically in the written statement. In fact the case of the Defendants first set was that they were not in cultivatory possession but their lessees were in cultivatory possession. However, the finding of the court below was that the Defendants first set were always in possession. It does not appear from the record as to which of the Defendants first set were actually cultivating the plots or all of them were cultivating jointly. Had the point been raised on a proper pleading the matter would have been considered by the courts below as the question involves not only law but enquiry into facts. I think it is too late for the Defendants Appellants to raise such a plea. Had the point been raised on a proper pleading the matter would have been considered by the courts below as the question involves not only law but enquiry into facts. I think it is too late for the Defendants Appellants to raise such a plea. 15. The result is that this appeal has no force and is dismissed with costs.