1. The substantial question of law which calls for ourdecision in this appeal, is whether the statutory title, acquired by an adversepossessor of a part of a tenure, is an encumbrance within the meaning ofsections 159 and 161 of the Bengal Tenancy Act. The question is apparently offirst impression, and arises under circumstances as to which, upon the factsfound by the Court below, there is now no controversy between the parties. Onthe 9th June 1902, the plaintiff-respondent purchased a tenure at a sale heldin execution of a decree for rent obtained by the superior landlord, theMaharaja of Burdwan. The sale was confirmed on the 21st July, but when theplaintiff proceeded to take possession of the lands purchased by him, thedefendant, now appellant before us, resisted him on the ground that he had beenin occupation of the disputed land as part of another property. The plaintiffconsequently commenced this suit on the 6th July 1906, for declaration of titleand recovery of possession. The first defendant denied that the land was partof the tenure purchased by the plaintiff, and pleaded that be held it under thesecond defendant, who appeared and supported his allegations. The Court offirst instance found, upon the report of a Commissioner appointed to survey thedisputed land, that part, at any rate, of the property was included within thetenure purchased by the plaintiff: but the Court dismissed the suit on theground that the defendants had been in occupation for nearly thirty years, andhad acquired a title which had not been and indeed could not be extinguished inthe manner provided in section 167 of the Bengal Tenancy Act. Upon appeal, theSubordinate Judge has reversed this decision. He has held that the interestacquired by the defendants, by their adverse possession for the statutoryperiod, was an encumbrance, that section 167 of the Bengal Tenancy Act was notapplicable to the case, and that the plaintiff was entitled to avoid theencumbrance in the suit as framed. The Subordinate Judge has also held that theclaim was not barred by limitation. In this view, he has allowed the appeal,and remanded the case to the Court of first instance for determination of theother issues. The defendants have now appealed to this Court, and on theirbehalf the decision of the Subordinate Judge has been challenged substantiallyon two grounds, namely, first, that the plaintiff was not a purchaser at a saleheld in execution of a decree for arrears of rent; and, secondly, that the wasa purchaser at a sale for arrears of rent, the interest acquired by thedefendants by their adverse possession was an encumbrance which could beannulled only under section 167 of the Bengal Tenancy Act, but had not been soannulled. In our opinion, the first of these contentions is unsustainable, butthe second must prevail.

2. In support of the first contention, it has been arguedthat the certificate of sale granted to the plaintiff under section 816 of theCivil Procedure Code of 1882, shows that he had purchased only the right, titleand interest of the judgment-debtors, and not the defaulting tenure under theprovisions of the Bengal Tenancy Act. In our opinion, there is no foundationfor this argument. To determine what passed to the purchaser at theexecution-sale, we must look to the sale-certificate as a whole, and examine,if necessary, the nature and scope of the execution proceedings. No doubt; onepart of the sale-certificate describes the interest transferred as the right,title and interest of the judgment-debtors in the property mentioned in theschedule; but it is explicitly stated in another part that the propertytransferred was one of which the rent was in arrear. There is no room forreasonable doubt, therefore, that what was intended to be sold and what wasactually sold was the defaulting tenure described as the property of thejudgment-debtors. The contention of the appellant is really not sup-ported bythe decision in Dwarka Nath v. Aloka Chundra 9 C. 641 upon which much reliancewas placed in that case, upon a construction of the sale-proclamation and thesale-certificate, this Court held that what had been sold and what was intendedto be sold, was not the defaulting tenure but merely the right, title andinterest of the judgment-debtors. Reliance was also placed by the learnedJudges upon the circumstance that the consideration paid at the sale showedclearly that the auction-purchaser had acquired, not the tenure, but merely theright, title and interest of the judgment-debtors. This case, in our opinion,does not lay down any inflexible rule of law, but must be taken to have beendecided on its own special facts. In the case before us, there is no room forserious controversy that the decree was for arrears of rent of the defaultingtenure, that the defaulting tenure was put up to sale, and that the purchaserobtained title thereto. The view we take is supported by the decisions in AkhoyKumar v. Bijoy Chund 29 C. 813 and Nazir Muhomed v. Girish Chandra Chowdhuri: 2 C.W.N. 251. It cannot further be disputed that, in orderto ascertain what really passed at the sale, it is not merely open to theCourt, but incumbent on it, if necessary, to examine the whole of theproceedings [Ishan Chumler v. Buksk Ali (1863) Marshall 614; Satish Chunder v.Nilcomal 11 C. 45 and Roy Radha Kissen v. Nauratan Lal 6 C.L.J. 490 at p. 519,where the authorities on the subject will be found collected and reviewed]. Wemust consequently hold that the plaintiff is a purchaser of a tenure at a salefor arrears of rent under the Bengal Tenancy Act. The first contention of theappellants, consequently, fails and must be overruled.

3. In support of the second contention of the appellants, ithas been argued that as the defendants have been in adverse possession of thedisputed land for over twelve years, possibly for nearly thirty years, theinterest they have acquired therein is an encumbrance within the meaning ofsections 159 and 161 of the Bengal Tenancy Act, and, as the plaintiff has nottaken any steps, in conformity with section 167 to annul such encumbrance, heis not entitled to maintain an action in ejectment on the footing that thedefendants are trespassers. Section 159 provides, that where a tenure is soldin execution of a decree for arrears due in respect thereof, the purchasershall take, with power to annul the interests defined as encumbrances, providedthat the power to annul shall be exercisable only in manner directed by ChapterXIV of the Bengal Tenancy Act. Section 161 then provides that, for the purposesof that chapter, the term "encumbrance", used with reference to atenure, shall mean any lien, sub-tenancy, easement, or other right or interestcreated by the tenant on his tenure or holding, or in limitation of his owninterest therein and not being a protected interest as defined in section 160.With regard to this definition, it has been contended on behalf of theappellants, that the right or interest acquired by an adverse possessor of partof the lands included in a tenure, is a right or interest created by the tenanton his tenure or holding, and in limitation of his own interest therein. Insupport of this view, reliance has been placed upon numerous judicial decisionsin which the corresponding provisions of similar statutes have been construed.In answer to this argument it has been contended on behalf of theplaintiff-respondent that when a tenure-holder acquiesces in the adversepossession of a portion of his lands by a trespasser, he cannot rightly be saidto create a right or interest on his tenure in the trespasser in limitation ofhis own interest therein. In our opinion, the contention of the appellants iswell founded and must prevail. The expression used by the Legislature insection 161, is closely similar to the phraseology used in various statutes,which have been judicially construed for over half a century, and which supportthe interpretation suggested on behalf of the appellants.

4. In section 27 of the Revenue Sale Law, Act XLI of 1841,it was provided that a purchaser of an estate sold for the recovery of arrearsof revenue due thereon would acquire the estate free from all encumbrances,which might have been imposed upon it after the time of settlement. Withreference to this provision, it was ruled by the Bengal Sudder Court inLukhmeer Khan v. Collector of Rajshai (1851) Beng. S.D.A. 116 that theinterest, acquired by an adverse possessor, was an encumbrance imposed upon theestate after the time of settlement. The principle upon which this decision wasbased was, that there was no real distinction between a case in which thedefaulting proprietor had actively created an interest in favour of a stranger,and the case in which the defaulting proprietor had acquiesced in the creationof an interest in a stranger by operation of law. The result was the same,whether the proprietor had actively limited his own interest in the estate, orhad passively submitted to the imposition of such a limitation therein. Again,in section 26 of the Revenue Sale Law (Act 1) 1845, the same phraseology wasre-produced and it was ruled by the Bengal Sudder Court in Ram Sunkur Roy v.Bejoy Govind Bural (1852) Beng. S.D.A. 824 that the interest acquired by atrespasser by adverse possession for the statutory period as against thedefaulting proprietor, was an encumbrance imposed upon the estate taken by apurchaser at a sale for arrears of revenue. Section 37 of the Revenue Sale Law(Act XI) 1859, reproduces the same phraseology, and with reference to it thesame principle has been repeatedly affirmed by our Courts. See Goluckmonee v.Huro Chunder 8 W.R. 62, Thakor Dass v. Nubeen Kishen 15 W.R. 552, Karmi Khan v.Brojo Nath Das : 22 C. 244, Narain Chunder v. Tayler: 4 C. 103 : 3 C.L.R. 151 and Moizuddi Biswas v. IshanChandra Das : 13 C.L.J. 293 : 15 C.W.N. 706 : 7 Ind. Cas.849.

5. A similar question has arisen upon the construction ofsection 11 of the Patni Regulation (VIII of 1819) which provides that thepurchaser acquires the property free of all encumbrances that might haveaccrued upon it by any act of the defaulting proprietor. With reference to thisprovision, it has been repeatedly held that the interest acquired by atrespasser, who has been in adverse possession of the lands of the taluk, is anencumbrance that has accrued upon it by act of the defaulting proprietor[Gopendro Chundar Mitter v. Mokadam Hossain 21 C. 702, Nuffer Chandra v.Rajendra Lal : 25 C. 167., and Rhanto Moni v. Bijoy Chand 19C. 787].

6. When we turn to the Sales of Under-Tenures Act (Act VIIIB.C.) 1865 we find that section 16 provides that a purchaser of an under-tenuresold under the statute, acquires it free of all encumbrances which may haveaccrued thereon by any act of any holder of the under-tenure. This provisionwas interpreted in the manner already described in the case of Mahomed Askur v.Mahomed Wasuck 19 W.R. 413. The same principle has been applied in the case ofsales under section 105 of the Bengal Rent Law (Act X) 1859, Woomesh Chunder v.Raj Narain 10 W.R. 15. A similar view was adopted with reference to section 71of the Assam Land and Revenue Regulation 1886), in Mahomed Nasim v. Kasi NathGhose : 20 C. 194 : 3 C.W.N. 108 where the learned Judgespointed cut that there was no distinction in principle between an encumbrance activelycreated by the defaulter, and a statutory title acquired by an adversepossessor through the acquiescence or laches, willful or negligent, on the partof the defaulter. It is worthy of note that the language used by theLegislature in section 22 of Regulation XI of 1882, was very comprehensive.Under that section, the purchaser obtains the estate "free from anyaccidents or encumbrances that may subsequently have been imposed, or havesupervened thereupon such as sale, gift, or other transfer, mortgage, marriagesettlement, or oilier assignment, or the like". The judicial decisions,however, which we have reviewed, show conclusively that the language used inthe subsequent statutes, though not amplified to the same extent as in theRegulation of 1822, has substantially the same effect. It is further worthy ofnote, that as is clear from the definitions quoted in Prodyote Kumar v. RakhalChandra : 11 C.L.J. 209 at p. 213 : 5 Ind. Cas. 243 [LQ/CalHC/1910/21] : 37 C.322 : 14 C.W.N. 487, the term "incumbrance" has a comprehensivemeaning, and there is no reason why it should be interpreted in a narrow andrestricted sense.

7. In view of these authorities, which have been accepted asgood law for over half a century, it is clear that in sections 159 and 161 ofthe Bengal Tenancy Act, the term encumbrance ought to be interpreted so as toinclude the statutory title and interest acquired by a trespasser by adversepossession of a part of the lands of the defaulting tenure. As pointed out byBlackburn, J., in Mersey Docks v. Cameron (1865)11 H.L.C. 443 at p. 480 : 200B. (N.S.) 56 : 851. J.M.C. 1 : 11 Jur. (N.S.) 746 : 13 W.R. 1069, where an Actof Parliament has received a judicial construction putting a certain meaning onits words, and the Legislature in a subsequent Act in pari materia uses thesame words, there is a presumption that the Legislature used those wordsintending to express the meaning which [it knew had been put upon the samewords before, and, unless there is something to rebut that presumption, the Actshould be so construed, even if the words were such that they might originallyhave been construed otherwise. For other applications of the same principle ofconstruction, reference may be made to the decision of the Judicial Committeein Ruchna Boye v. Lulloobhov 5 M.I.A. 234; and of this Court in Kamini Debi v.Promotha Nath Mukerjee : 13 C.L.J. 597 : 10 Ind. Cas. 491 [LQ/CalHC/1911/191] . Wemust hold, therefore, that the statutory title acquired by the defendantsagainst the defaulting tenure holder by adverse possession, is an encumbrancewithin the meaning of sections 159 and 161 of the Bengal Tenancy Act.

8. The only other question, which requires consideration is,whether such encumbrance could be annulled in any manner other than what is providedin section 167 of the Bengal Tenancy Act. Even if there had been no expressprovision in section 159 that the powers to annul an encumbrance shall beexercisable only in the manner directed by Chapter XIV of the Bengal TenancyAct, the position would have been incontestable that, as explained in thejudgment of a Full Bench of this Court in Collector of Pabna v. Rama NathTagore 7 W.R. 191 : B.L.R. Sup. Vol. 630, where the Legislature has created anobligation to be enforced in a specific manner, as a general rule, performancecould nor be enforced in any other way. Here, however, the provisions ofsections 159, 164, are specific, and the power to annul an encumbrance can beexercised only in conformity with the procedure laid down in section 167: [SoshiBhusan Guha v. Gogan Chunder Shah 22 C. 364 and Chundra Sahai v. Kalli ProsonnoChuckerbutty 23 C. 254]. It is conceded that the plaintiff has not followedthat procedure. Consequently, the encumbrance has not been annulled, that isthe title of the defendants had not been extinguished, and they are not liableto be evicted by the plaintiff. The second ground urged by the defendants mustconsequently prevail.

9. The result is, that this appeal must be allowed, theorder of the Subordinate Judge discharged, and the suit dismissed with costs inall the Courts.

10. This judgment, it is conceded, will govern the other twoappeals, and consequently the suits, out of which those appeals arise, willstand dismissed with costs in all the Courts. We assess the hearing fee at onegold mohur in each case.

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Gokul Bagdi vs.Debendra Nath Sen (16.06.1911 - CALHC)