1. This is an appeal by the defendants in a suit fordeclaration of title to land and for recovery of possession thereof. Theplaintiffs claim the disputed land as included in their mokarari tenure andallege that the defendants have taken wrongful possession of it. The Courtsbelow have concurrently found in favour of the plaintiffs upon the question oftitle. It has been argued before us that the Courts have erroneously held thatthe interest of the plaintiffs is that of a mokararidar. In our opinion, thereis no foundation for this contention. The Courts have found upon the evidencethat the plaintiffs have a mokarari right and that finding cannot be disturbedin second appeal. The only substantial question in controversy in the appealis, whether or not the claim is barred by limitation. On behalf of theappellants, it has been argued that the suit is barred under Article 3 ofSchedule III of the Bengal Tenancy Act and also under Article 142 of ScheduleII of the Indian Limitation Act.

2. In so far as the first branch of this contention isconcerned, it has been argued that the plaintiffs are raiyats and that the suitwhich was instituted on the 14th September 1908 is governed by Article 3 asamended by Act I of 1907 (B.C.). The Article as amended provides that a suit torecover possession of land claimed by the plaintiff as a raiyat or an underraiyat must be brought within two years from the date of dispossession. The plaintiffs-respondentsdo not admit that they are raiyats; on the other hand, they assert that theyare tenure holders. But even if it be conceded that the plaintiffs are raiyatsas alleged by the defendants, the Article in its amended form cannot possibly apply.No doubt, as pointed out by their Lordships of the Judicial Committee in LalaSoni Ram v. Kanhaiya Lal : 19 Ind. Cas. 291 : 40 I.A. 74 : 13M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488: 15 Bom. L.R. 489 : 35 A. 227 : 25 M.L.J. 131, the law of limitationapplicable to a suit is, prima facie, the law in force at the date of theinstitution of the suit. But there may be circumstances connected with a newstatute which furnish an indication that the Legislature did not intend toaffect retroactively existing causes of action; one of these circumstances is,as pointed out in Bisseshur Sanamat v. Jasoda Lal : 19 Ind.Cas. 391 : 17 C.W.N. 622, that the new law was brought into immediate operationwithout any opportunity afforded to litigants to enforce their rights under theold law. On this principle, it was recently held in the case of Manjhoori Bibiv. Abel Mahomad : 19 Ind. Cas. 798 : 17 C.L.J. 316 : 17C.W.N. 889 that Article 3, as amended, cannot be held to apply to cases wherethe dispossession took place before the amending Act came into operation. Thefirst branch of the argument, consequently, fails.

3. As regards the second branch of the argument, we observethat the Courts below have found that the plaintiffs were in occupation up to1892 when the land was diluviated. The land began to re-form in 1893 but didnot become fit for cultivation till 1897. The defendants granted leases totheir sub-tenants on the 27th May 1896; but it has been found that the landscould not be actually occupied and cultivated till the 22nd September 1897. Theposition, therefore, is that the plaintiffs were in occupation up to the timeof submergence of the laud and, in view of the decision of the JudicialCommittee in the case of Secretary of State v. Krishnamoni Gupta: 29 C. 518 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 29 I.A. 104,they must also be deemed to have been in occupation so long as the laudremained submerged. But it has been argued that adverse possession must bedeemed to have commenced before the land was actually tit for occupation andcultivation. In our opinion, there is no force in this contention. As waspointed out by Lord Davey in the case just mentioned, in order to sustain aclaim to laud by limitation under the Indian Limitation Act, there must beactual possession of a person claiming as of right by himself or by personderiving title from him. In other words, as stated by their Lordships of the JudicialCommittee in the case of Clark v. Elphinstone 6 App. Cas. 164 : 50 L.J.P.C. 22,as against the rightful owner the possession of a trespasser is available, onlywhen there is actual possession of the disputed land or overt or physical actof ownership done upon it. The true owner is cot affected by ideal possessionof the land or possession which exists only in the imagination of the parties[Mirza Shamsher Bahadur v. Kunj Behari Lall 7 C.L.J. 414 at p. 423]. MereAssertion of a hostile title by the defendants on the 27th May 1896 did not,consequently, affect the possession of the plaintiffs. The second branch of theargument, consequently, fails.

4. The result is, that the view taken by the District Judgethat the defendants have not been in adverse possession for more than twelveyears must be upheld, and his decree affirmed with costs.

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Budhu Kumar vs. HafizHussain (22.04.1913 - CALHC)