HEMANTA KUMARI DEBI Vs. MIDNAPORE ZEMINDARY CO LTD

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of khas possession with mesne profits of certain lands . . . or in the alternative for assessment and recovery of fair rent from the beginning of 1339 B.S. (1932-33 A.D.) to the Pous last of 1342. The disputed lands appertain to permanently settled mouza Sibnagar diar otherwise known as Araji Sibnagar. Plaintiffs are owners of 12 as 9 gds. 2 krs. and 2 krant share in zamindari and mourashi jote right. The remaining share of the mouza belongs to the defendant in putni right. The plaint lands have been surveyed by a Commissioner and have been shown in his map as part of plot C, the whole of plots D and E. At the time of the trial in the lower Court plaintiffs withdrew their claim in respect of plot E. Plaintiffs claim for possession of plot D was not opposed before us by the defendant. Plaintiffs are therefore entitled to get khas possession of that land to the extent of their share, viz., 12 as 9gds. 2krs. and 2 krants. The lands being admittedly sandy, plaintiffs claim for mesne profits in respect of this land does arise. The dispute in this appeal is confined to 396 bighas of land in plot C (hereinafter referred to as the disputed land) to the immediate east of a jote held by the defendant under the plaintiffs at an annual rent of Rs. 76-8-0.

(2.) The ease of the plaintiffs is that the defendant is in possession of this disputed land as a trespasser and that they came to know of this trespass on 23 January 1924 and consequently they are entitled to recover khas possession with mesne profits of the disputed land to the extent of their share. They also claim Rs. 1-8-0 per bigha as fair rent for their share of the disputed land in the alternative. The defence of the defendant so far as it is relevant for the purpose of the present appeal is that they have acquired a tenancy right in the whole of the disputed land by adverse possession for more than 12 years. As regards the rate of fair rent, the defendants allege that 4 as. per bigha is the fair rent. The trial Judge has accepted the defence of the defendant. He has accordingly dismissed the plaintiffs claim for khas possession of the disputed land but has decreed fair rent at the rate admitted by the defendant. Hence this appeal by the plaintiffs. The first point for determination in this appeal is whether the defendant has acquired tenancy right to the whole of the disputed land by adverse possession for more than 12 years.

(3.) No doubt the case of the plaintiffs as made in the plaint is one of dispossession by the defendant after they had been in possession, at least constructively, of the disputed land. But the defendant admits that the plaintiffs have title to these lands. It is also admitted that before the defendant went into possession as a tenure-holder the lands were under water. The defendant does not claim to have been in possession in assertion of any title other than that of a tenant under the plaintiffs. In our opinion when the defendant in possession sets up a title only to a limited interest which even if completed would not extinguish the title of the plaintiff, it is for the defendant to establish his title in order to defeat the claim of the plaintiff. The claim of the defendant is now confined to the interest acquired by adverse possession. Adverse possession-the temporary and abnormal separation of the enjoyment of property from the title to it?is a "jus possessionis" in a person having no jus possidendi and means possession which is hostile under a claim or colour to title. The possession must be actual, open, uninterrupted, notorious, exclusive and continuous. When such possession is continued for 12 years it confers an indefeasible title upon the possessor.