ISHAN CHANDRA BAKSHI Vs. SEFATULLA SIKDAR

JUDGEMENT

(1.) This is an appeal under clause lo of the Letters Patent from the judgment of Mr. Justice Newbould in an Appeal from Appellate Decree in a suit for recovery of possession of land on declaration of title. The plaintiff claimed the disputed land as included in an occupancy holding held by one Biswambhur Bakshi at an annual rent of Rs. 6-4-0 under the Sinha Rays who were tenure holders under the Raja of Dighapatya. The occupancy holding was sold in 1900 in execution of a decree for arrears of rent, when it was purchased by one Prosanna Chandra Bhattacharjya. His representatives made default in the payment of rent, and the occupancy holding was again sold in execution of a decree for arrears of rent on the 23 April 1913 when it was purchased by the landlords themselves. The plaintiff took settlement from the landlords on the 24 February 1915, but was unable to obtain possession of the disputed area. The result was the institution of this suit on the 10 January 1916. The defendants resisted the claim on the ground that the tract in suit never formed part of the occupancy holding held by Biswambhur Bakshi under the Sinha Rays and was in reality included in a tenancy held by Biswambhur Bakshi and Gobinda Bakshi at an annual rant of Rs. 9-4-0 payable directly to the Raja of Dighapatya. The question consequently arose, whether the disputed land was included in the tenancy of Rs. 6-4-0 hell by Biswambhur Bakshi under the Sinha Rays or in the tenancy of Rs. 9-4-0 held by Biswambhur Bakshi and Gobinda Bakshi under the Raj of Dighapatya. The Trial Court answered this question in favour of the plaintiff and decreed the suit. On appeal the Subordinate Judge did not determine this question, but held that, on the assumption that the land was included in the tenancy of Rs. 6-4-0 held by Biswambhur Bakshi under the Sinha Rays, the defendants and their predecessors had acquired a title by adverse possession which constituted an incumbarance and could have been, but had not beer, annulled by the grantor of the plaintiff under Section 167 of the Bengal Tenancy Act, read with Section 159. The Subordinate Judge found upon the evidence that, on the 21st May 18 6 one Abinash Chandra Bhattacharjya, in execution of a mortgage decree held by him against Biswambhur Bakshi and Gobinda Bakshi, purchased their tenancy of Rs. 9-4-0 under the Raja of Dighapatya, that on the 29 November 1898 the purchaser transferred the tenancy to Harinath Mookerjee (one of the defendants in this suit), and that, same the mortgage sale of 1896, Abinash and thereafter Harinath had been in possession of the disputed land as included in the tenancy of Rs. 9-4-0. The Subordinate Judge further found that neither Prosanna Chandra Bhattacharjya nor his successors-in-interest ever possessed the land cis included in the tenancy of Rs. 6-4-0 held by Biswambhur Bakshi under the Sinha Rays, On these findings, the Subordinate Judge held that the defendants had acquired a good title by adverse possession from 1900 it when Prosanna Chandra Bhattacharjya became the purchaser at a rent-sale-tin the 23 April, 19(sic)3, when the grantors of the plaintiff purchased at another rent-sale. The question thus emerged for consideration, whether the statutory title by adverse possession acquired by the defendants against the tenant for whose fault the holding of Rs. 6-1-0 was brought to sale, was an incumbrance within the meaning of Section 159 of the Bengal Tenancy Act which the purchaser at the rent-sale was competent and bound to annul in the prescribed method, namely, in the manner directed in Section 167. The Subordinate Judge answered this question in the affirmative, and his view has been approved by Mr. Justice Newbould, as supported by a long line of decisions in this Court.

(2.) The term "encumbrance" was not introduced for the first time in the Bengal Tenancy Act, but, as was (jointed out in Gakul Bagdi V/s. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C. L. J. 186., had been repeatedly used by the Indian Legislature in a well-recognised sense in the statutory provisions of our land-law and. revenue-law. In Lukhmeer Khan V/s. Collector of Rajshahye (1851) Beng. Section D. A. 824 : 12 Ind. Dec. (O. S.) 641. Section 27 of the Revenue Sale Law, 1841, which provided that a purchaser of an estate sold for the recovery of arrears of revenue due thereon would acquire the estate free from all incumbrances imposed thereupon after the time of settlement, was interpreted to signify that the interest acquired by an adverse possessor was an encumbrance. The same phraseology was reproduced in Section 26 of the Revenue Sale Law, 1845, and was similarly interpreted in Ramsunkur V/s. Bejoy Govind Boral (1852) Beng. Section D. A. 824 : 12 Ind. Dec. (O. S.) 641. Section 37 of the Revenue Sale Law, 1859, reproduces the same phraseology and has been repeatedly construed in the same sense: Goluck Monee V/s. Huro Chunder 8 W. Rule 62; Thakore Bass v. Nubeen Kishen 15 W. Rule 552; Narain Chunder V/s. Tayler 4 C. 103 : 3 C. L. Rule 151 : 2 Shome L. Rule 78 : 2 Ind. Dec. (N. S.) 67; Karmi Khan V/s. Brojo Nath Das 22 C. 244 : 11 Ind. Dec. (N. S.) 164; Moizudi Biswas V/s. Ishan Chandra Das 7 Ind. Cas. 849 : 15 C. W. N. 706 : 18 C. L. J. 298., A similar question has arisen upon the construction of Section 11 of the Patni Regulation, 1819, and it has been frequently held that the interest acquired by a trespasser, who has been in adverse possession of part of the lands of the taluk for the statutory period is an incumbrance that has accrued upon it by the act of the defaulting putnidar: Khontomoni Dasi V/s. Bijoy Chand 19 C. 787 : 9 Ind. Dec. (N. S.) 968; Gopendro Chunder V/s. Mokaddam Hossein 21 C. 702 : 10 Ind. Dec. (N. S.) 1099; Nuffer Chandra Pal V/s. Rajendra Lal Goswami 25 C. 167 : 13 Ind. Dec. (N. S.) 113; Prodyote Kumar Tagore V/s. Rakhal, Chandra Sarkar 5 Ind. Cas. 243 : 11 C. L. J. 209 : 37 C. 322 : 14 C. W. N. 487; Kalikonanda Mukherjee V/s. Bipro Das Pal 26 Ind. Cas. 486 : 21 C. L. J. 285 : 19 C. W. N. 18 at p. 20. When we turn to Section 16 of the Sales of Under-Tenures Act, 1865, we meet with a similar provision which has been construed in a like manner; Mahomed Askur V/s. Mahomed Wasuck 22 W. Rule 413. The same principle was applied by Sir Barnes Peacock, C. J., in the case of sales under Section 105 of the Bengal Rent Law, 1859 : Womesh Chander Goopta V/s. Raj Narain Roy 10 W. Rule 15. A similar view has been adopted with reference to Secs.70 and 71 of the Assam Land and Revenue Regulation, 1886, Mahomed Nasim V/s. Kasi Nath Ghose 26 C. 194 : 3 C. W. N. 108 : 13 Ind. Dec. (N. S.) 729; Aptar Ali V/s. Brojendra Kishore Roy 28 Ind. Cas. 119 : 20 C. L. J. 210. This is supported by the decision of the Judicial Committee in Surja Kanta Acharjya Bahadur V/s. Sarat Chandra Roy ., where it was ruled that the period of limitation for adverse possession against the purchaser at a sale for arrears under the Revenue Sale Law, 1859, only commences to run from the date of the sale, It is thus undeniable that, at the time when the Bengal Tenancy Act was passed, the term "incumbrance" had a well-recognised meaning in connection with provisions in Statutes in pari materia. It is equally incontestable that, since the Bengal Tenancy Act came into operation, the word "incumbrance" as used in Secs.159 and 161 has been interpreted to include a statutory title and interest acquired by a trespasser by adverse possession of a part of the lands of the defaulting tenure or holding: Karmi Khan v. Brojo Nath Das 22 C. 244 : 11 Ind. Dec. (N. S.) 164; Moisuddi Biswas V/s. Ishan Chandra Das 7 Ind. Cas. 849 : 15 C. W. N. 706 : 18 C. L. J. 298. Gokul Bagdi V/s. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C. L. J. 186. Arsadulla V/s. Munseb Ali 14 Ind. Cas. 349 : 16 C. L. J. 539 : 16 C. W. N. 831; Satish Chandra V/s. Muniamali Debt 15 Ind. Cas. 869 : 17 c. W. N. 840. Bhutan Chandra Ghosh V/s. Srakanta Banerjee 33 Ind. Cas. 957 : 23 C. L. J. 485 : 21 C. W. N. 155 : 46 C. 756; Monmotha Nath Mitter V/s. Anath Bunthu Pal 61 Ind. Cas. 469 : 25 C. W. N. 106., We have bean pressed to hold, however, that the view which hag obtained in this Court far well- nigh seventy years as to the meaning of the term "incumbrance" is erroneous and is not logically reconcileable with the position maintained in Kumar Kalanani Singh V/s. Syed Sarafat Hossein 12 C. W. N. 528; Rahim-ud-Din V/s. Bhabagana Debya 1 Ind. Cas. 80 : 18 C. W. N. 407; Baikuntha Nath Rai V. Basanta-Kumari Dasi 34 Ind. Cas. 946 : 23 C. L. J. 164; Aftar All V/s. Brojendra Kishore 37 Ind. Cas. 252 : 24 C. L. J. 60; Jitendra Kumar Pal V/s. Mohendra Chandra Sarma 97 Ind. Cas. 239 : 24 C. L. J. 62. and Mohim Chandra Deb V/s. Piyare Lal Das 39 Ind. Cas. 213 : 25 C. L. J. 99 : 21 C. W. N. 537 : 44 C. 412; namely, that the adverse possessor, when his title has ripened by prescription, becomes in essence a co-owner of the estate, tenure or holding, as the case may be, and his interest cannot logically be deemed an incumbrance on the ownership. It need not be disputed that the matter, were it res integra, would be open to serious argument, as, indeed, is indicated by the observation of Lord Phillimore in Bipradas Pal V/s. Kamini Kumar 66 Ind. Cas. 674 : 41 M. L. J. 638 : 15 L. W. 180 : 30 M. L. T. 133 : 26 C. W. N. 465 : 49 C. 27 : 4 U. P. L. Rule (P. C.) 58. where the Judicial Committee affirmed the decision in Kalihonanda Mukherjee V/s. Bipro Das Pal 26 Ind. Cas. 486 : 21 C. L. J. 285 : 19 C. W. N. 18 at p. 20. But in the well-known words of Mr. Justice Holmes (Common Law P. 1), the life of the law is not logis but experience. As pointed out by Blackburn, J., in Mersey Docks and Harbour Board V/s. Cameran (1864) 11 H. L. Cas. 443 at p. 480 : 20 C. B. (N. S.) 56 : 35 L. J. M. C. 1 : 11 Jur. (N. S.) 756 : 13 W. Rule 1069 : 11 E. Rule 1405 : 12 L. T. (N. S.) 648 : 145 Rule R. 256 : 144 E. Rule 1021. where an Act of Parliament had received a judicial construction, putting a certain meaning on its words, and the Legislature in a subsequent Act in pan materia uses the same words, there is a presumption that the Legislature used those words intending to express the meaning which it knew had been put upon the same words before, and, unless there is something to rebut that presumption, the Act should be so construed even if they were such that they might originally have been construed otherwise. To the same effect are the observations of Sir John Jervis, C. J., in Ruckmaboye V/s. Lulloobhboy 5 M. I. A. 234 : 8 Moo. P. C. 4 : 1 Sar. P. C. J. 423 : 18 E. Rule 884 : 14 E. Rule 2 : 97 Rule R. 1. and of James, L, J. in Campbell, Ex parte, Cathcart, In re (1870) 5 Ch. App. 708 : 23 L. T. 289 : 18 W. Rule 1056. We are further of opinion that the case before ns belongs to that class where the Court should be reluctant to dissent from the view expressed in long established decided cases and thereby not only to unsettle the law but also to endanger the security of property and title,---dangers whish are not associated with changes brought about by legislative intervention: Young V/s. Robertson (1862) 4 Macq. 314 at p. 345 : 8 Jur : (N. S.) 825 : 181 Rule R. 788., Owners of Steamship Mediana V/s. Owners Master and Crew of Lightship "Comet" (1900) App. Cas. 113 : 69 L. J. P. C. 35 : 82 L. T. 95 : 48 W. Rule 398 : 9 Asp. M. C. 41 : 16 T. L. Rule 194; Kreglinger V/s. New Patagonia Meat & Gold Storage Co. (1914) A. C. 25 : 83 L. J. Ch. 79 : 109 L. T. 802 : 58 Section J. 97 : 30 T. L. Rule 114. We hold accordingly, in concurrence with Mr. Justice Newbould, that the word incumbrance, as used in Secs.159 and 161 of the Bengal Tenancy Act, includes statutory title and interest acquired by a trespasser by adverse possession of a part of the lands of the defaulting tenure or holding and that such encumbrance cannot be annulled in any manner other than what is provided in Section 167.

(3.) The result is that the decree made by Mr. Justice Newbould is affirmed and this appeal dismissed with costs.