KHATEMY CHHAIKUDDIN CHAUDHURY Vs. RAM NARAIN GHOSE

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment of the purchaser of a jote by the landlord. The plaintiff's case was that one Trailakhya Nath Chaudhury was the former tenant of the jote, that the defendants were in possession as purchasers of the whole mouza and as Trailakhya or his heirs were not in possession of any portion of the jote the defendants were trespassers although they purported to purchase the jote which was an ordinary non-occupancy holding or a non-permanent tenure which is not transferable. The defence was that the jama was a permanent tenure, that the son of Trailakhya had mortgaged it to the defendant's predecessor Khetshi Das who bought and obtained possession of the property in execution of the mortgage-decree in 1903 and that the defendants purchased the jama from Khetshi in 1907 and had been in possession since then. Both the Courts below on this pleading and the evidence in the case have found that the plaintiffs have lost their right to recover possession by lapse of time and that the defendants by asserting permanent right in the jote have acquired the right adversely to the plaintiffs. This finding recorded by the learned Judge is in the following words: "We thus have that since 1903 Khetshi Das, and subsequently the defendants have been holding this tenure asserting it to be a permanent tenure to the knowledge of the landlord." This finding of fact, in our judgment, concludes the case. Three points have been argued in appeal by the learned Advocate for the appellants.

(2.) The first is that there being no case set up by the defendants as to the acquisition of any title by adverse possession, the lower Appellate Court is wrong in holding that the defendants have acquired a permanent right by adverse possession. In order to understand this objection, it is necessary to refer to the pleadings in the case. The plaintiff's case as made out in the plaint is that as the heir of Trailakhya gave up possession of the jote without making any arrangement for payment of rent, the same should be regarded as having come into possession of the plaintiffs and the defendants should, therefore, be regarded as trespassers illegally possessing the land; and, further, that as the jote was either a non-transferable occupancy or non-transferable non-permanent tenure, the heir of Trailakhya having transferred the same without the consent of the plaintiffs and against their will, the defendants acquired no right or title to the disputed land and they were, therefore, trespassers. The defendants, on the other hand, pleaded that they had purchased an istamrari mokarrari tenure from Trailakhya's heir and thus they and their predecessor have been in possession of the disputed land for more than 20 years by virtue of such purchase and under assertion of such right. The Courts cannot, therefore, be said to be wrong in holding that the defendants and their predecessors have been holding it for more than 12 years with adverse possession of a limited interest, and as they claim to hold the land as a permanent tenure, the suit of the plaintiffs for ejectment is barred by limitation. Reference has been made on behalf of the appellants to the case of Madhavrao Waman V/s. Raghunath Venkatesh Deshpande 74 Ind. Cas. 362 : 50 I.A. 255 : 47 B. 798 : 25 Bom. L.R. 1005 : (1923) M.W.N. 689 : (1923) A.I.R. (P.C.) 205 : 33 M.L.T. 389 : 28 C.W.N. 857 : 20 L.W. 248 : 47 M.L.J. 248 (P. C) and it is argued on the authority of the pronouncement of their Lordships of the Judicial Committee that the defendants could not acquire any title by adverse possession as against the plaintiffs landlords. The case referred to has no bearing on the present question. There their Lordships held that persons in possession who had a limited right cannot acquire a permanent right by adverse possession. The case of Beni Pershad Koeri V/s. Dudhnath Roy 26 I.A. 216 : 27 C. 156 : 4 C.W.N. 274 : 7 Sar. P.C.J. 580 : 14 Ind. Dec. (N.S.) 103 (P. C) is next relied upon. That case too has no bearing on the present question. There it was held that a life-tenant cannot acquire a higher title by adverse possession; or to put more broadly, a tenant who is in possession of land under a certain right cannot acquire a higher right by merely asserting that he is a tenant of a superior chur or possessing rights higher than what he already had in the land. This view of the law cannot be disputed. If a tenant is in possession of land and the landlord has not the immediate right of re-entry, any assertion by the tenant would not make time run against the landlord for the reason that the landlord cannot claim any redress so long as he is not entitled to get possession of the land. To hold that whenever the tenant asserts a right which he did not possess, it is the duty of the landlord to repudiate such right would be to drive the landlord to have recourse to Courts of Law almost every day, merely because the tenant has chosen to assert a right which he does not possess. The real circumstances which makes the Law of Limitation run against the landlord is that he is entitled to possession. This principle has been enunciated in the case of Birendra Kishore Manikya V/s. Fuljan Bibi 38 Ind. Cas. 469 : 25 C.L.J. 467, when it is said that while a contract of tenancy is in force, either party cannot practically obtain a variation thereof by persisting for a long period in his assertion that the term is otherwise than what it really is.

(3.) It is next argued that the defendants are not competent to claim any title by adverse possession as they stand in the shoes of Surendra or Trailakhya the nature of whose tenancy has not been investigated by the Courts below. The contention is that Surendra's tenancy was a temporary one and, therefore, the defendants who have purchased his tenure cannot claim a higher right than that possessed by Surendra. The question is whether the defendants really claim such right and whether the Courts below are wrong for not enquiring into the nature and the character of Surendra's tenancy. The Courts below have held that the defendants as purchasers purchased the property as a permanent tenure and they have been holding it since their purchase as a permanent tenure to the knowledge of the plaintiff. This fact gives rise to the claim of adverse possession in favour of the defendants.