1. These 88 appeals arise out of as many suits fordeclaration of title to immoveable property and for recovery of possessionthereof. The case for the Plaintiff-Respondent may be briefly stated. Healleges that in 1799 an estate was created from which a putni tenure was, carvedout later on, on some date not known, but the putni was sold in 1807, and thepurchaser Romesh Chandra Mukerji on the 26th of June 1804 gave a kabuliyat tothe zamindar Maharaja Tej Chandra. In execution of a decree for arrears of rentobtained by the proprietor against the putnidars the tenure was sold under theprovisions of the Bengal Tenancy Act on the 28th November 1899 and passed intothe hands of the Plaintiff. The Plaintiff asserts that the Defendants in thevarious suits are in possession of different parcels of land within the ambitof the putni taluk purchased by him and that they have no right to continue inoccupation. He accordingly prays that his title by purchase may be declared andthat the Defendants may be ejected as trespassers. According to the Plaintiffthe cause of action in each of these suits arose on the 28th November 1899, thedate of the auction purchase, and no question of limitation could arise as thesuits have been instituted within 12 years from the date of such purchase.

3. The Defendants resist the claim on the ground amongstothers that they hold under rent-free grants and that in any event the claim ofthe Plaintiff is barred by limitation. Their case in substance is that theyhave been in possession of these lands from the time of their predecessors andthat their possession can be traced back to at least 1790, long before thecreation of the putni as also the formation of the permanently settled estateout of which the putni was carved. The District Judge has found in favour ofthe Plaintiff that the Defendants have failed to establish their rent-freetenure and that the suits are not barred by limitation inasmuch as they havebeen commenced within 12 years of the date when the sale became final andconclusive within the meaning of Art. 121 of the Second Schedule to the IndianLimitation Act. On behalf of the Defendants-Appellants the decision of theDistrict Judge has been assailed on the merits and the view taken by him uponthe question of limitation had been attacked as obviously unsound. It is notnecessary for our present purposes to examine the merits of the cases, becausewe have arrived at the conclusion that the suits are barred by limitation. TheDistrict Judge has held that Art. 121 of the 2nd Schedule of the IndianLimitation Act is applicable to the cases. That article provides that suits toavoid incumbrances in a putni taluk sold for arrears of rent must be commencedwithin 12 years from the date when the sale becomes final and conclusive. Weshall for the purposes of the present argument and for that purpose aloneassume that Art. 121 applies to a case in which a suit has been instituted by apurchaser of a putni taluk at a sale held under the provisions of the BengalTenancy Act. The question on this assumption arises whether the suits before usare suits to avoid incumbrance in a putni taluk. The District Judge has held onthe authority of the decision in Naffer Chandra v. Rajendra Lal I.L.R. 25 Cal.167 (1897), that Art. 121 is applicable. That decision formulates theproposition that the interest acquired by an adverse possessor of land includedin a putni taluk is an incumbrance within the meaning of Art. 121 of the 2ndSchedule of the Limitation Act. This view is in accord with the principle recognizedin the cases of Woomesh Chandra Goopta v. Raj Narain Roy 10 W. R. 15 (1868),Khanto Moni Dassi v. Bijoy Chandra I.L.R. 19 Cal. 187 (1892) and Karim Khan v.Broja Nath Das I.L.R. 22 Cal. 244 (1895). It is very material to observehowever that the adverse possession contemplated in these cases is possessionwhich commenced after the creation of the putni tenure. These cases are foundedon the principle laid down in sec. 11 of Reg. VIII of 1819. The first clause ofthat section declares that any taluk or saleable tenure, that may be disposedof at a public sale under the rules of the Regulation for arrears of rent dueon account of it, is sold free of all encumbrances that may have accrued uponit by act of the defaulting proprietor, his representatives or assignees,unless the right of making such encumbrances shall have been expressly vestedin the holder by a stipulation to that effect, in the written engagements underwhich the said taluk may have been held. No transfer by sale, gift orotherwise, no mortgage or other limited assignment is permitted to bar theindefeasible right of the zamindar to hold the tenure of his creationanswerable in the state in which he created it for the rent which is in facthis reserve property in the tenure except the transfer or assignment shouldhave been made with a condition to that effect under express authority obtainedfrom such zamindar.

4. The principle consequently is that the purchaser of aputni taluk at a sale held under Reg. VIII of 1819 takes the taluk in the statein which it was initially created, and the judicial decisions to which we havealready referred lay down the doctrine that the purchaser takes the propertynot free merely of all incumbrances that may have accrued upon the tenure byact of the defaulting proprietor, his representatives or assignees but alsofree of the interest acquired by an adverse possessor who has been able toacquire such interest by the action of the defaulting proprietors. Thisdoctrine is plainly limited in its application to cases where the adversepossession commenced after the creation of the putni.

5. In a case in which the proprietor of the estate is out ofpossession he cannot merely by the device of the creation of a subordinatetaluk arrest the effect of the adverse possession which has already commencedto run against him and such possession would be effective not only as againstthe subordinate tenure-holder, but also as against the superior proprietor.Consequently, if the Plaintiff relies upon Art. 121 of the 2nd Schedule of theIndian Limitation Act, he has to establish that the encumbrance which he seeksto annul is due to adverse possession which commenced after the creation of theputni. The District Judge has not found that in the cases before us the adversepossession of the Defendants and their predecessors commenced after thecreation of the putni. On the other hand there is ample evidence that theadverse possession of the Defendants and their predecessors commenced beforethe creation of the putni. There are traces on the record, to show that therehad been assertions of hostile title before the putni itself was created. Onbehalf of the Plaintiff-Respondent however it has been suggested that there issome evidence of ancient possession of the disputed land by the proprietor ofthe estate. But before we deal with the evidence to which allusion has beenmade in the course of argument it may be pointed out that the Plaintiff, beforehe can succeed, must prove that the proprietor was in possession when the putniwas created. In order to establish that the proprietor was in possession atthat time, it has been argued that we should presume that possession followstitle. In our opinion that doctrine has no application to a case of thisdescription. No doubt, it was pointed out by their Lordships of the JudicialCommittee in the case of Runjeet Ram v. Gobordhan Ram 20 W. R. 25 (29) (1873)that in the decision of the question of limitation, if there is conflictingevidence on both sides, the Court may presume that possession was with theparty whose title has been established. But it does not follow that when thePlaintiff has to establish possession at a particular point of time he isentitled to call upon the Court to presume that because his title has beenestablished, possession must be presumed to have been with the holder of thetitle at that specific period of time. This contention indeed is clearlyopposed to the decision of the Judicial Committee in the case of Mohima Chandrav. Mohesh Chandra L R. 16 I. A. 23 : S.C. I. L. R. 16 Cal. 473 (1888), wheretheir Lordships pointed out that it is not enough for the Plaintiff in anaction in ejectment to establish his title or his possession at some remotetime; but that it is essential for him to prove that he was in possessionwithin 12 years antecedent to the suit. To the same effect are the decisions inPudma Coomari Debi v. Court of Wards L. R. 8 I. A. 229 (1881), Jafar Husain v.Mashqu Ali I. L. R. 14 All. 193 (1892), Hemanta Kumari v. Jagadindra Nath 10 C.W. N. 630 (1906). We have next been asked to hold that the grant of the putnitenure itself is evidence of possession; and in support of this argument wehave been asked to consider the terms of the putni kabuliyat. Our attention hasalso been invited to the cases of Attorney-General v. Emerson (1891) App. Cas.649, 658, Malcomson v. ODea 10 H. L. C. 593 (1863), Briston v. Cormicon 3 App.Cas. 641 668 (1878) and Blandy Jenkins v. Dunraven (1899) 2 Ch. 121 to showthat ancient documents produced from proper custody and by which any right toproperty purports to have been exercised are admissible even in favour of thegrantor or his successors, in proof of possession. This doctrine is justifiedon the principle that documents of this character may rightly be treated aspresumptive evidence of possession, because ancient possession is incapable ofdirect proof by witnesses and such documents are themselves acts of ownership,real transactions between man and man, intelligible upon the footing of titleor at least of a bond fide, belief in title, since in the ordinary course ofthings men do not execute such documents without acting upon them. Thisprinciple plainly has no application to the circumstances of the present cases.An examination of the putni kabuliyat does not show that there is any assertionthat the grantor of the putni at the time was in possession of every parcel ofland comprised within the boundaries of the putni, nor is there any allegationin the document that the grantee of the taluk obtained actual possession ofevery piece of land within the tenure granted to him.

6. It has finally been argued that the thak map of 1852 isevidence of possession, and that witnesses have been called to speak topossession of two villages by a lessee from the putnidar. The evidence howeveris of the vaguest description and does not show that the putnidar who was theowner of the estate was in actual possession of any particular parcel of landnow in dispute. In these circumstances we are of opinion that the Plaintiff hasnot established that the possession of the Defendants commenced after thecreation of the putni or that the proprietor of the estate was in possession atthe time when the putni was granted. Consequently the interest acquired by theDefendants cannot be deemed to be an incumbrance within the meaning of Art. 121nor it is an encumbrance within the meaning of the first clause of sec. 11 ofReg. VIII of 1819. In this view the decrees made by the District Judge cannotbe supported.

7. It is clear however that the case as made in the plaintis based on an entirely erroneous assumption. The Plaintiff has come into Courton the allegation that his cause of action arose on the 20th November 1899 whenhe purchased the property at a sale held under the provisions of the BengalTenancy Act. This statement was material for the purposes of the case, becauseunder sec. 50, cl. (d), of the Civil Procedure Code of 1882, it was incumbenton the Plaintiff to embody in his plaint a plain and concise statement of thecircumstances constituting the cause of action and where and when it arose. Itwas further his duty, if the cause of action arose beyond the period ordinarilyallowed by any law for instituting the suit, to show in his plaint the groundupon which exemption from such law was claimed. In the cases before us theDefendants have been unquestionably in possession for more than 12 yearsantecedent to the suit. The Plaintiff therefore had to make out an affirmativecase to take his suit out of the statute of limitation, and he based his caseon the ground that the cause of action arose on the 28th November 1899 on theassumption that Art. 121 of the Second Schedule of the Indian Limitation Actwas applicable.

8. But it cannot be disputed that the cause of action did notarise on the 28th November 1899. The Plaintiff made his purchase at a sale heldin execution of a rent decree under the Bengal Tenancy Act. Under sec. 159 ofBengal Tenancy Act, he made his purchase with power to annul the interestsdefined as incumbrances in sec.161. Clause (a) of that section lays down thatthe term encumbrance used with reference to a tenancy means any lien,sub-tenancy, easement or other right or interest created by the tenant on histenure or holding or in limitation of his own interest therein, and not being aprotected interest as defined in sec. 160. With reference to the use of theterm encumbrance in this section, it was held in the cases of Gocool Bagdi v.Debendra Nath Sen 14 C. L. J. 136 (1911) and Arsadulla v. Mansubah 16 C. L. J.539 (1912) that encumbrance includes a statutory title acquired by a trespasserby adverse possession of the land of the defaulting tenure, provided such actof possession commenced after the tenure had been created. It was further heldthat such encumbrance cannot be annulled in any manner other than that providedin sec. 167 of the Bengal Tenancy Act. Consequently upon the facts of the caseit is clear that before the Plaintiff can succeed he must establish that theinterest acquired by the Defendants by adverse possession constitute anencumbrance within the meaning of sec. 161 of the Bengal Tenancy Act and arecapable of annulment in the manner provided in sec. 167. The difficulty of thePlaintiff, if this view of the matter be adopted, is that he has notestablished that the adverse possession of the Defendants and theirpredecessors commenced after the creation of the putni taluk. But even if hehad succeeded in establishing that such adverse possession commenced after thecreation of the putni taluk, before he could succeed, he would have to provethat under sub-sec. (1) of sec. 167, he had annulled the encumbrances byservice of notice within one year from the date of the sale or the date onwhich he first had notice of the encumbrances. In the plaint it was stated thatnotices had been served as contemplated by sub-sec. (1) of sec. 167 on the 5thOctober 1907. But the Plaintiff asserted that such service of notice wasunnecessary and the Courts below did not investigate whether the notices were actuallyserved; and if served, whether they were served within one year from the dateon which the Plaintiff first had notice of the encumbrances. It is not disputedthat the notices, which are alleged to have been served on the 5th of October1907, were not served, if served at all, within one year from the date of thesale, which took place as already stated on the 28th November 1899. Iftherefore the interest of the Defendants constituted an encumbrance thePlaintiff would have to establish that he had notice of the encumbrance withinone year prior to the 5th October 1907. The Courts below have not found thatthe Plaintiff had first notice of the interest of the Defendants within oneyear prior to the 5th October 1907. On the other hand it is extremely improbable,to say the least, that when so many persons in so many suits were in open andpeaceable occupation of so many parcels of land that the Plaintiff should nothave discovered till after 5th of October 1906, that is, nearly seven yearsafter he had purchased the putni at the execution sale, that the Defendantsclaimed to hold under an adverse title. The slightest enquiry, such as aprudent owner would in ordinary course have made, would have disclosed that theoccupants of the land claimed to hold them without payment of rent to theproprietor or his representatives. Consequently if the provisions of the BengalTenancy Act are applied, as they must be applied, the position of the Plaintiffbecomes even more difficult than it is, if reliance is placed only upon Art.121 of the Second Schedule to Indian Limitation Act on the groundlessassumption that the sale took place under the provisions of the PutniRegulation. We may add that the restriction mentioned in sec. 195 (e) of theBengal Tenancy Act does not touch the question of the applicability of sec. 167to the lands in suit. The result is that these appeals must be allowed, thedecree of the District Judge set aside and the suits dismissed with costs inall the Courts.

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Kalikanund Mukerjee and Ors.vs. Biprodas Pal Choudry(12.02.1914 - CALHC)