Authored By : Ernest Edward Fletcher, Maurice Smither

Ernest Edward Fletcher, J.

1. This is an appeal by the Defendants Nos. 1 to 3 from ajudgment of the learned District Judge of the 24-Perganahs, dated the 6thJanuary 1915, affirming the decision of the Munsif of Basirhat. The suit wasbrought by the Plaintiff for a declaration of his Ganti right to certain churlands. In Kismat Patta, there were two portions--the Bower Patta and the DangaPatta. The Danga Patta belonged to a certain number of Zemindars and had beendivided amongst them. The Bower Patta belonged to certain Zemindars who are nowrepresented by the Defendants Nos. 5 to 53. The first lease that was granted ofthis property appears to have been in the Bengali year 1268. That lease of theBower Patta was granted to one Arun Chunder Bhattacharjee. The lease in itsterms excluded 321 bighas of land. Arun in his term granted an underlease totwo persons named Jasimuddin and Gorai Mandal on the 20th Falgoon 1271 B.S.,corresponding to some date in March 1865. On the 10th April 1901, an intermediatelease was granted TO one Dharanath Roy Choudhury. Then a rent suit was broughtby Dharanath to recover rent from Jasimuddin and Gorai Mandal. That suit wasdecreed and in the sale in execution on the 29th July 1902 Dharanath Roypurchased the interest of Jasimuddin and Gorai. Dharanath Roy surrendered hisizara right in favour of Aruns son, the present Defendant No. 4, on the 19thJune 1903 and sold his Dar-Ganti right to one Promoda Sundari. Then a suit forrent was brought against Promoda Sundari in the year 1908 and a decree waspassed and the Defendant NO. 1 purchased the tenure. On the 14th July 1909, theDefendant No. 4 sold his right purchased in execution to the Plaintiff. Whenthe Plaintiff went to take possession in October or November 1909, he wasresisted and the result was that the present suit was started in the month ofAugust 1911. The first point that was raised in this appeal was as to whetherthe Plaintiff had established that the land sued for in this case was a portionof the land included in the lease to Arun. The question, it strike me, iseminently a question of fact. But whether it is a question of fact or not, thedecisions both of the Primary Court and also of the lower Appellate Court showconclusively that this land is, in fact, a portion of the land let out to Arunand that the 321 bighas which might have been Bower Patta originally had, onthe date of the lease to Arun, become part of the Danga Patta.

2. The next argument was on the question of limitation. TheAppellants before us, according to the findings of both the lower Courts, werefor twenty years and upwards in possession of this land and the question thatwas raised in this appeal was whether the possession of the Defendants wasadverse as against; the lessor during the subsistence of the underlease. If itwas not, it is quite clear, on the facts, that the present suit was broughtwithin time. The decisions in this Court on the point are numerous. But thedecisions in favour of the Appellants--when one reads the cases clearly--arefew and they consist, as far as I can see, amongst others, of the decision inthe case of Prosunnamoyi Dasi v. Kalidas Roy 9 C.L.R. 347 (1881) a decision ofMr. Justice Prinsep and Mr. Justice Field. That case has frequently not beenfollowed in this Court. In my own experience while forming a member of a Benchof this Court certainly on one occasion that decision was not followed. Theother case referred to is the case of Brindaman Chunder Sirkar Choudhury v.Bhoopal Chunder Biswas 17 W.R. 377 (1872). That decision also seems to supportthe argument of the Appellants. The other cases that Dr. Dwarka Nath Mitter forthe Appellants has cited in support of his argument do not, when clearly read,support the proposition he put forward because in every one of those cases theCourt was deciding a case where the property had been let out to common tenantsand the Court drew attention in the course of its judgment to the differencebetween a case where the property was let out to common tenants and a casewhere the property was let out in izara. I do not think that those other casescited by Dr. Dwarka Nath Mitter support the proposition that he wished to make.As against that, there is a large body of authority commencing with the case ofC.J. Davis v. Kazee Abdool Hamid 8 W.R. 55 (1867) which is followed by thedecision in Womesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 (1868) down tothe latest case cited to us, namely, the case of Kishwar Nath Sahi v. KaliSankar Sahai 10 C.W.N. 343 (1905). All these cases decided clearly that wherethe property was let out in lease, the possession of a trespasser did notbecome adverse as against the lessor until the termination of the lease. That,I think, is not only established by those cases but is also correct inprinciple. The difficulties of holding that the possession of a trespasserduring the continuance of the lease could be adverse as against the lessor areserious as has been pointed out in more than one judgment. I think that thelearned District Judge in the Court of appeal below was clearly right when heheld that the Plaintiffs suit was not barred by adverse possession. I think,therefore, that the appeal fails and must be dismissed with costs. The otherquestion is the question raised on the cross-objection to the appeal, namely,that, on the findings in this case, the learned Judge ought not to have settleda fair and equitable rent as against the Appellants but ought to have passed adecree for ejectment. The learned Judge has found that the Appellants aretrespassers. He has also found that the case that the Defendants set up thatthey bona fide held the land under a person whom they believed to be the ownerthereof is not a true case. The only reason for which the learned Judge thoughtthat the Defendants ought not to be ejected was that they had been in actualpossession of the land for some twenty years and that, therefore, it was notequitable that they should be ejected. But if a person has been in actualpossession for twenty years and there are no special circumstances such as havebeen laid down in the cases as to a person taking a settlement bona fide from aperson whom he believes to be entitled to the land, the mere fact that he hasbeen there for twenty years is no reason why be should not be ejected. On thecontrary it is more reasonable that he should be ejected because he has been inpossession of another mans property for a considerable number of years. Thedecree of the lower Appellate Court in this respect has been attempted to be supportedby Dr. Dwarka Nath Mitter by two decisions of this Court. But neither of thosecases clearly applies to the facts of this case. The first case that has beenrelied upon is the case of Ishan Chunder Mitter v. Ram Ranjan Chuckerbutty 2C.L.J. 125 at p (sic)38 (1905) and the remarks that are relied on are to befound at p. 138. They run as follows :--"In a case like this where thetenant encroaches not in his character as tenant but asserts a hostile titleagainst the entire interest of his landlord, the rule laid down by this Courtin the case of Wali Ahmed v. Tota Meah I.L.R. 31 Cal. 397 (1903) would beapplicable, namely, that if a tenant encroaches on the adjoining waste lands ofthe landlord, his possession of the lands encroached upon can only commence tobe adverse when a title adverse to the landlord is asserted or the landlordbecomes aware of the encroachment." The present case is clearlydistinguishable from that rule because the encroachment in this case was not anencroachment on the adjoining land of the landlord. These lands do not belongto the persons who are the landlords of the other lands said to be held by theDefendants. The only other class of cases is that class where a person hastaken a bona fide settlement from another person whom he believed to be, infact, the landlord and entitled to let out the land. The learned Judge in thelower Appellate Court has found that the case that the Defendants set up thatthey bona fide held the land under a person whom they believed to be the ownerthereof was not a true case. The equity that they set up as to long possessionwhich satisfied the learned District Judge is no ground, in my opinion, whythey should be permitted to be in possession of the land which the learnedJudge of the lower Appellate Court has found they are holding possession of astrespassers. I think we ought to allow the cross-objection of thePlaintiff-Respondent and in lieu of the decree made by the learned Judgesettling a fair and equitable rent of the property we ought to direct that theDefendants-Appellants before us be ejected from the land in suit. Thecross-objection is, therefore, allowed with costs.

Maurice Smither, J.

I agree.

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Hajra Sardara and Ors. vs. Kunja Behari Nag Chowdhury(20.03.1917 - CALHC)