B.K. Mullick, J.

1. This is a case of encroachment by a tenure-holder upon the land of his landlord.

2. The title of the plaintiff proprietor is not denied but the ground on which the learned District Judge has dismissed the plaintiff's suit is that the plaintiff has not proved possession of the lands within 12 years of the institution of the suit and that, therefore, under Article 142 of Schedule I of the Limitation Act of 1908 his right to sue has been extinguished.

3. The first point argued before us by Mr. Dass on behalf of the plaintiff-appellant is that the land being jungle and title having been proved, the possession of the plaintiff can be presumed.

4. This is not altogether a correct proposition, because I do not think the presumption under section 114, Evidence Act, is limited to jungle land. The character of the land cannot affect the principle of law which requires that the plaintiff should give affirmative evidence of possession within what may be called the statutory period in every suit under Article 142. It is true that here the plaintiff took upon himself the burden of proving acts of ownership within 12 years. The learned District Judge has disbelieved his evidence on this point and that finding is final.

5. But this finding does not dispose of the case. The plaintiff having proved his proprietary title in 1884 is entitled to claim the presumption that he had possession and that his possession continued till within 12 years of the suit. It was for the defendants to rebut the presumption and this they have failed to do. The case is covered by Mahomed Ali Khan v. Khaja Abdul Gunny  9 C. 744 : 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145, Radha Gobind Roy Saheb v. Inglis 7 C.L.R. 364 : 3 Suth. P.C.J. 809 (P.C.) and Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 25 C.L.J. 69 : 43 I.A. 197 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 39 M. 617 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 (P.C.). Indeed the judgment of their Lordships in the last mentioned case is so apposite and instructive that I think it necessary to reproduce some portions of it. There the Crown claimed an island in the sea, but the High Court of Madras dismissed the suit on the ground that the Crown had failed to prove possession, i.e., a subsisting title within the period of limitation which in this case was 60 years. Their Lordships of the Privy Council disagreed with this view and observed as follows: "Their Lordships are of opinion that the view thus taken of the law is erroneous. Nothing is better settled than that the onus of establishing property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say: 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfill all legal conditions.' And later their Lordships go on to say: "It would be contrary to all legal principles thus to permit the squatter to put the owner to the fundamental right to a negative proof upon the point of possession."

6. Therefore, even if Article 142 applies to the present case the plaintiff must succeed, because the defendant has failed to rebut the presumption of the plaintiff's possession and to prove that the plaintiff's title was extinguished by adverse possession. The learned District Judge is in error in saying that the length and nature of the defendant's possession is wholly immaterial.

7. But in my opinion the suit is not one under Article 142. The plaint, though inartistically drawn, is in essence one for declaration of title and confirmation of possession, the cause of action starting from the 30th of July 1910, when the survey authorities dismissed the plaintiff's objection to an entry declaring the land to be the first defendant's ghatwali tenure. The plaintiff's case is that from that date the possession of his tenant became adverse and that Article 144 applies.

8. The defendants rely upon Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty 2 C.L.J. 125 and on Raktoo Singh v. Sudhram Ahir 8 C.L.J. 557, but it is not clear from the reports whether in these oases the tenants did not in fact assert adverse possession for twelve years. In my opinion the law is clearly stated by Jenkins. C.J., in Gopal Krishna v. Lakhiram 14 Ind. Cas. 212 : 16 C.W.N. 634, where it is laid down that whereas a tenant is bound to treat that which is an encroachment as held by him under his landlord, there is no corresponding liability upon the landlord to treat the land on which his tenant encroaches as a part of his tenancy, that the landlord is entitled to re-enter unless his right is otherwise barred, that if the tenant has been in possession of the encroached portion for more than twelve years, then it is to be seen whether he has been in such possession adversely to the landlord and whether such adverse possession was in respect of a limited or absolute interest. In my opinion the learned Chief Justice held that Article144 is applicable.

9. It follows, therefore, that if the first defendant has been in adverse possession of the absolute interest for twelve years then the plaintiff's rights have been completely extinguished, but if the adverse possession was in respect of a limited interest, as tenant, then the landlord would be entitled only to claim rent.

10. The Subordinate Judge who heard the evidence found that the defendant had failed by the only witness called by him to prove any adverse possession and that finding has not been displaced by the learned District Judge. Therefore, the plaintiff is entitled to re-enter.

11. Moreover in this particular case the question whether the possession of the present defendant and that of his father before him was adverse is not really material. For the encroachment was begun by the first defendant's father, who was the former ghatwal and who died in 1908. As the defendant was appointed by the Crown as ghatwal after an interval of some months, the defendant was an independent trespasser in relation to his father and cannot add his possession to that of the latter, and it follows that the plaintiff's title has not been extinguished by any possession that this defendant may have exercised.

12. It has been contended by the learned Vakil for the respondent that a ghatwali tenure is hereditary and that the defendant became entitled to possession immediately upon the death of his father. This, however, is not the view taken by this Court in Midnapur Zamindar Co., Ltd. v. Ajamhor Singh Mura 36 Ind. Cas. 963 : 1 P.L.J. 601, where it was held that in the District of Manbhum from which this suit comes, ghatwali tenures are not hereditary and that the ghatwal's appointment depends upon the will and pleasure of the Crown.

13. Therefore, if as I hold to be the case, Article 144 applies, the suit is clearly within time; and I have already shown that even if Article 142 applies it is also within time.

14. It appears that a small portion of the jungle has been reclaimed and that defendants Nos. 4 to 9 are khuntkattidars in possession of some plots and defendants Nos. 10 to 12 are occupancy raiyats in respect of others. The landlord is not entitled to and does not ask for khas possession but only claims rent from the persons entered in the survey records as tenants in occupation of these plots. In respect of the other lands the landlord is entitled to khas possession against the defendants.

15. The decree of the District Judge, therefore, will be set aside and the Subordinate Judge's decree will be restored, except as to costs.

16. With regard to costs we have to observe that at one stage of this appeal before us the landlord undertook to settle the lands with the first defendant, but after taking an adjournment he has resiled from that promise. He has, moreover, so imperfectly instructed the learned gentlemen appearing for him that they have been unable to tell us the respective areas of the jungle and cultivated lands in suit. The plaintiff will pay costs of the defendant in all the Courts.

Atkinson, J.

I concur.