Chatterji, J.

(1) This is an appeal under Clause la of the Letters Patent by the defendants in a suit for ejectment. Admittedly the suit land forms part of an occupancy holding of the plaintiffs, the incidents of which are governed by the Chotanagpur Tenancy Act. The plaintiffs case was that about 10 years ago Rachhi Singh, deceased father of defendant No. 1 and husband of defendant No. 2, took dar-raiyati settlement of the suit land from the plaintiffs and about 6 years ago he built a house-on a part of the suit land on condition that the house would toe demolished and the suit land restored to its former condition and delivered to the plaintiffs on demand. After the death of Rachhi Singh, the defendants have been in possession of the suit land. On 16th of July, 1945 the plaintiffs, served a notice on them to vacate the land. As they did not do so, the plaintiffs instituted the present suit in 1946.

(2) The suit was contested by defendant No. 1, who will be referred to hereinafter as the defendant, and his defence in substance was that the plaintiffs settled the suit land with Rachhi Singh under a deed dated the 15th Aghan 1325 fs. on an annual cash rent of Rs. 9-4-6 and it was agreed between the parties that Rachhi Singh would acquire permanent right in the land by virtue of the settlement; Rachhi Singh thereafter built a big house and dug a well on the land at a cost of about Rs. 10,000/-; the plaintiffs, therefore, are not entitled to eject the defendants. It was also pleaded that the civil Court had no jurisdiction to try the suit.

(3) The learned Munsif who tried the suit held that the lease relied upon by the defendants contravened the provisions of Section 46 of the Chotanagpur Tenancy Act and was, therefore, invalid. He, however, held that as the defendants predecessor was inducted on the land on the assurance that he would have a permanent right in the land, the plaintiffs were not entitled to eject the defendants. He accordingly dismissed the suit. On the question of jurisdiction, he held that the suit was cognizable by the civil Court.

(4) On appeal, the learned Subordinate Judge held that the lease set up by the defendants was for an indefinite period and was, therefore, invalid in view of the provisions of Section 46 of the Chotanagpur Tenancy Act. He also held that the defendants predecessor built the house on the suit land more than 20 years ago and they have been in possession of the land and the house for up-wards of 20 years. He further held that the plaintiffs forfeited their right to eject the defendants from the land on which the house was built, but were entitled to eject them from the rest of the land. He held that the suit was cognizable by the civil Court. He accordingly allowed the appeal in part and decreed the suit with regard to the land on which no house or structure stands. On second appeal, Shearer J. affirmed the decree of the lower appellate Court.

(5) The first point argued by Mr. A. B. Saran on behalf of the appellants is that the civil Court is barred under Section 139 of the Chotanagpur Tenancy Act from trying the suit. But the section itself bars "suits under this Act." It has not been shown how the present suit can be said to be a suit under this Act.

(6) The next point argued by Mr. Saran is that the suit is barred by limitation. According to the finding of the lower appellate Court, the defendants have been in possession under an invalid lease for more than 20 years. It is, therefore, contended that the suit is barred under Article 142 of the Limitation Act. Article 142 refers to suit

"For possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession".

On the facts of the present case, Article 142 by its terms cannot apply. According to both parties case, the defendants predecessor was inducted on the land as a tenant, though under an invalid lease. It cannot, therefore be said that the plaintiffs have been dispossessed or have discontinued the possession. Making over possession to a tenant, though under an invalid lease, does not amount to discontinuance within the meaning of the Article.

(7) The suit will, therefore, be governed by the residuary Article 14

4. Under this Article, 12 years will have to be computed from the time "when the possession of the defendant becomes adverse to the plaintiff."

(8) The Question for determination, therefore, is when the possession of the defendants became adverse to the plaintiffs. Section 46 of the Chotanagpur Tenancy Act, as it stood at the date of the defendants lease, that is, in 1921, was as follows (omitting the portions which are not material to our present purpose) :

"

1. No transfer by a raiyat of his right in his holding or any portion thereof- (a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or (b) ......shall be valid to any extent".

The finding of the lower appellate Court is that the lease granted by the plaintiffs in favour of the defendants predecessor was for an indefinite period; in other words, it was for a period which might in any possible event exceed 5 years. Consequently, it was not valid to any extent. The position, therefore, is that the defendants predecessor Rachhi Singh came into possession of the land under an invalid lease, that is to say, without any title, and his possession from the very beginning was that of trespasser and necessarily it was adverse to the plaintiffs, at any rate, so far as their right to khas possession was concerned. The finding of the lower appellate Court is that the defendants have been in possession of the suit land for upwards of 20 years. If, therefore, their possession was adverse from the very beginning, the suit is obviously barred even assuming that their possession became adverse after 5 years from the commencement of the lease, still the suit will be out of time.

(5) The first point argued by Mr. A. B. Saran on behalf of the appellants is that the civil Court is barred under Section 139 of the Chotanagpur Tenancy Act from trying the suit. But the section itself bars "suits under this Act." It has not been shown how the present suit can be said to be a suit under this Act.

(6) The next point argued by Mr. Saran is that the suit is barred by limitation. According to the finding of the lower appellate Court, the defendants have been in possession under an invalid lease for more than 20 years. It is, therefore, contended that the suit is barred under Article 142 of the Limitation Act. Article 142 refers to suit

"For possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession".

On the facts of the present case, Article 142 by its terms cannot apply. According to both parties case, the defendants predecessor was inducted on the land as a tenant, though under an invalid lease. It cannot, therefore be said that the plaintiffs have been dispossessed or have discontinued the possession. Making over possession to a tenant, though under an invalid lease, does not amount to discontinuance within the meaning of the Article.

(7) The suit will, therefore, be governed by the residuary Article 14

4. Under this Article, 12 years will have to be computed from the time "when the possession of the defendant becomes adverse to the plaintiff."

(8) The Question for determination, therefore, is when the possession of the defendants became adverse to the plaintiffs. Section 46 of the Chotanagpur Tenancy Act, as it stood at the date of the defendants lease, that is, in 1921, was as follows (omitting the portions which are not material to our present purpose) :

"

1. No transfer by a raiyat of his right in his holding or any portion thereof- (a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or (b) ......shall be valid to any extent".

The finding of the lower appellate Court is that the lease granted by the plaintiffs in favour of the defendants predecessor was for an indefinite period; in other words, it was for a period which might in any possible event exceed 5 years. Consequently, it was not valid to any extent. The position, therefore, is that the defendants predecessor Rachhi Singh came into possession of the land under an invalid lease, that is to say, without any title, and his possession from the very beginning was that of trespasser and necessarily it was adverse to the plaintiffs, at any rate, so far as their right to khas possession was concerned. The finding of the lower appellate Court is that the defendants have been in possession of the suit land for upwards of 20 years. If, therefore, their possession was adverse from the very beginning, the suit is obviously barred even assuming that their possession became adverse after 5 years from the commencement of the lease, still the suit will be out of time.

(9) Mr. Rajkishore Prasad on behalf of the respondents contends that the possession of the defendants could never be adverse, because there is the admission of the defendant in the written statement that the defendants have always been paying rent to the plaintiffs for the suit land; in other words, the defendants have always admitted the superior title of the plaintiffs. But the admission must be taken as a whole. It is definitely asserted in the written statement that the defendants have been in possession of the disputed land as permanent tenants and have been paying rent for it. There is thus a clear assertion of hostile claim against the plaintiffs, so far as their right to khas possession is concerned.

(10) In Bhukhan Mian v. Radhika Kumari Debi, AIR (25) 1938 Pat 479 [LQ/PatHC/1938/97] there are, of course, certain observations of Wort, A. C. J. which may support Mr. Rajkishore Prasads contention. In that case the plaintiffs sued for redemption. The mortgage sought to be redeemed, being unregistered, was invalid and was not admitted in evidence. The question arose whether the defendant who was in possession under the invalid mortgage prescribed for the limited interest of a mortgagee. Wort A. C. J. stated:

"The plaintiff here seeks to recover possession. He cannot prove his contract as the documents are not registered; and, although strictly speaking, the mortgages may not be void but at the same time they are unprovable. Therefore it may very well be that the defendant could be treated as a trespasser from the time of the so-called mortgages of 192

1. But in this case, having regard to the fact which I have mentioned, namely, that he has been paying Rs. 8 per annum and which is being accepted by the plaintiff (and that fact is clear), it is impossible to hold that the defendant is a trespasser. The payment is evidence at least of the fact that the possession of the defendant by the plaintiff is permissive."

The plaintiffs suit, however, was dismissed on the ground that there was no evidence to prove their right to possession. In the present case, the defendants admission that they have been paying, rent to the plaintiffs is coupled with an assertion, that they are permanent tenants of the land. Upon these facts, the observation of Wort, J., is hardly of any assistance.

(11) Mr. Rajkishore Prasad relies on the Privy Council decision in Tekait Ram v. Madho Kumari, 12 Ind App 188. In that case a ghatwal sued to eject the defendants from a subordinate tenure on the ground that it was a tenure-at-will. On the question of limitation, their Lordships had to consider when the possession of the defendants became adverse to the plaintiff. Their Lordships stated ;

"It can scarcely be contended that immediately on the creation of the sub-tenure the possession of it became adverse when there was no dispute-or conflicting claim. If not so when did the possession become adverse"

It is clear that in that case there was a valid subordinate tenure and consequently the possession of the subordinate tenure-holder could not be adverse from the moment the tenure was created. In the present case, there was no valid tenancy created in favour of the defendants predecessor and his possession became adverse from the very inception.

(12) Shearer, J. is of opinion.

"No person can, by adverse possession acquire rights against the true owner unless the true owner has been kept out of possession for the statutory period. The plaintiffs were not however, kept out of possession, as they have throughout been receiving rent from the defendants, that is, they have been in the enjoyment of certain rights in the property."

But the right to khas possession must be distinguished from possession through tenants. If the plaintiffs have been receiving rent from the defendants, the possession of the defendants may not be adverse to the plaintiffs, so far as their right to receive rent is concerned. But if the defendants have been paying rent in assertion of a permanent tenancy right, their possession must be adverse to the plaintiffs, so far as their right to khas possession is concerned.

(13) In Shiva Shankar v. Beni Ram, 22 Pat LT 200, decided by Harries, C. J., and Fazl Ali, J., (as he then was,) it was held that the lessees under an unregistered patta which was invalid as a lease came upon the land as trespassers and as they and their successors-in-interest asserted the rights of tenants over the land for more than 12 years, they undoubtedly acquired a limited interest in the land by adverse possession.

(14) In the present case, it is unnecessary to decide what sort of interest the defendants have acquired by adverse possession. It is enough to consider if the plaintiffs suit is barred by limitation.

(15) Shearer, J., gives another reason for rejecting the plea of adverse possession;

"When the legislature in the public interest prohibits certain holders of land from alienating it, it is not easy to understand how an alienee can acquire rights in the land by adverse possession and so indirectly defeat the policy of the legislature."

But, because Section 46 forbids alienation, it does not at all follow that the law of limitation will not take its own course. Section 230 of the Chota Nagpur Tenancy Act provides:

"The provisions of the Indian Limitation Act, 1908, shall so far as they are not inconsistent with this Act, apply to all suits, appeals and applications under this Act."

The present suit is not a suit under this Act. Consequently, it will be governed by the provisions of the Limitation Act. Under Section 46 of the Chota Nagpur Tenancy Act a lease for a period exceeding 5 years is prohibited, and the raiyat who leases out his holding under an invalid lease is certainly entitled to sue to recover possession of his holding. But if he does not bring his suit within the period of limitation, he cannot recover possession and the alienee may acquire interest in the land by adverse possession. The result may seem to be anomalous, but so long as the legislature does not amend the law of limitation in order to give full effect to the policy underlying Section 46, there can be no escape from the position that a suit for possession brought after the expiry of the period of limitation must have to be held to be barred by limitation.

(16) In the result, I would allow the appeal, set aside the decision of Shearer, J., and dismiss the suit. In the circumstances, there will be no order for costs.