SARAT CHANDRA MAITI Vs. BIBHABATI DEBI

JUDGEMENT

(1.) The subject-matter of the litigation which has resulted in this appeal is a large tract of what is called Jalpai laud of the abolished Salt Department, situated in the district of Midnapur within the Zamindari of the Raja of Mahisadal. On the 8 July 1864 one Sunder Narain Maiti obtained a settlement from the Zemindar in respect of an estimated area of 400 bighas within specified boundaries. After the death of the original grantee, his son Taraprosad Maiti, on the 10 November 1874, took a confirmatory lease of 513 bighas, approximately, for the benefit of the family whereof he was the senior member. The relationship of the members of this family may be gathered from the following genealogical table:

(2.) The Maitis defaulted to pay rent, with the result that on the 20 August 1903 the Zamindars obtained a decree for rent against them. The decree was put into execution, and at the auction-sale whish followed, the landlords became the purchasers on the 16 January 1904 The sale was confirmed on the 18 February 1904 and possession was delivered on the 10 April 1904. On the 30 January 1909 the plaintiff obtained settlement from the Raja, The defendant, however, disputed her right to take possession. This led to the institution of proceedings under Secs.107 and 145 of the Criminal Procedure Code whish terminated in an order made on the 28 September 1912 for attachment of the disputed lands under Section 146 of the Criminal Procedure Code, The plaintiff, thereupon instituted the present suit on the 9 October 1917 for declaration of her title to the attached land under the base granted to her on the 30 January 1999 and to the sums of money held by the Collector as Receiver from the date of his, appointment. There were two sets of defendants to the suit, namely, defendants Nos. 1 to 5 and defendants Nos. 7 to 12, The first set repudiated the claim on the ground that it was barred by limitation and that the decree for rent did not affect their rights under the lease of the 10 November 1874, The second set urged that they held tenancies subordinate to the lease of the 10 November 1874 and were consequently entitled to remain in occupation, notwithstanding the sale held on the 16 January 1904 in execution of the decree for arrears of rent. The Subordinate Judge overruled these contentions and declared the right of the plaintiff to direct possession of the disputed lands; the decree also made a consequential order as to the amounts held in deposit in the treasury. The defendants have appealed against this decree, and Separate arguments have been addressed to the Court on behalf of the two sets of defendants who have united in one appeal. The grounds which emerge for consideration may be formulated as follows: first, that the Bait is barred by limitation; secondly, that the decree for rent made on the 26 August 1903 did not operate as a valid rent decree, as three of the parson interested in the tenancy created under the lease of the 10 November 1874 were not represented before the Court in the rent suit; and, thirdly, that the tenancies set up by the second set of defendants were real and not fictitious as held by the Subordinate Judge.

(3.) As regards the first point, we are of opinion that the plea of limitation cannot prevail, in view of the decision of this Court in Brojendra Kishore Roy V/s. Bharat Chandra Roy [Abdul Razac] 31 Ind. Cas. 242 : 22 C. L. J. 283 : 20 C. W. N. 481, That case is an authority for the proposition that when a property is attached under Section 146 of the Criminal Procedure Code, it passes into legal custody, and during the continuance of the attachment, sash custody is for the benefit of the true owner. If the true owner was in fast in possession when the attachment was effected, his possession in the eye of the law is not interrupted. If, on the other hand, the wrong doer was in possession at the time when the attachment took place, the effect of the attachment is to interrupt his possession, and from the mom rot of attachment the possession of the rightful owner revived in the eye of the law. These results are deducible from the decisions of the Judicial Committee in Trustees and Agency Company v. Short (1838) 13 App Cas. 793, 58 L. J. P. C. 4 : 59 L. T. 677 : 37 W. R. 433 : 53 J. P. 132, Secretary of State V/s. Krishnamani Gupta 29 I. A. 104 29 C. 58 : 6 C. W. N. 617 : 4 Bom. L. R. 537 : 8 Sar. P. C. J. 269 (P. C.) and Basanta Roy V/s. Secretary of Stale for India 40 Ind. Cas. 337 : 44 I. A. 104: 44 C. 858: 1 P. L. W. 593 : 32 M. L. J. 505 : 2 C. W. N. 612 : 15 A. L. J. 398 : 25 C. L. J. 487 : 19 Bom. L. R. 480; (1917) M. W. N. 482 : 6 L. W. 117 : 22 M. L. T. 310 (P. C.). The intervention of the public authorities for the preservation of peace, operates in the same way as the vis major of the floods, and the constructive possession of the land is thereafter, if anywhere, in the true owner. While the Collector bolds possession for the benefit of the rightful owner, no possession on the part of the wrong doer, can, by legal fiction, be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner. From the standpoint, no question of limitation really arises, because less than twelve years elapsed between the confirmation of the rent sale on the 18 February 1604 and the attachment by the Magistrate on the 28 September 1912. If during the attachment, the seisin or legal possession is in the true owner, the attachment does not amount to either dispossession of the owner or the discontinuance of his possession. But it has been urged that this view cannot be reconciled with the decision in Deo Narain V/s. Webb (5). This may be conceded; it mast not be overlooked, however, that the decision in that case was pronounced in 1900, when the judgment of the Fail Bench in holly Churn Sahoo V/s. Secretary of State for India (6) 6 C 725 8 C, L, It, 90, 4 Shume L: R,90 : 3 Ind was still considered good law. That Full Bench decision was overruled by the judgment of the Judicial Committee in Secretary of State V/s. Krishnamoni Gupta (3), The substance of the matter is that the doctrine that that there can be no continuances of adverse possession when the land is not capable of ure and enjoyment by the rightful owner, which is now regarded as an elementary proposition by reason of the successive decisions of the Judicial Committee in Trustees and Agency Company V/s. Short (2), Secretary of State V/s. Krishnamoni Gupta (3) and Basanta Roy V/s. Secretary of State for India (4) was by no means familiar when the case of Deo Narain V/s. Webb (5) was decided; that case cannot consequently be treated as binding authority, as it overlooks a fundamental principle enunciated by the Judicial Ccmmittee. We thus see no reason to depart from the decision in Brojendra Kithore Roy V/s. Bharat Chandra Rcy [Abdul Bazac] (I), and the first ground must be overruled as untenable.