Richard Garth, C.J.

1. Who, after stating the facts, continued.--It has beencontended on appeal that the Subordinate Judge was wrong; and that as it hasbeen found that the plaintiff had been in possession of the land for upwards of12 years, paying no rent for it, and as the land did not form part of histaluq, he must be considered as having held it adversely to his landlord; andas he has held it in this way for more than 12 years, he has acquired a titleto it by limitation.

2. This case, therefore, directly raises the question, whatthe law of this country is with regard to encroachments made by a tenant uponhis landlords property.

3. There is no doubt whatever that by the English law, anencroachment made by a tenant upon land adjoining to, or even in theneighbourhood of, his holding, is presumed, in the absence of strong evidenceto the contrary, to be made for the benefit of the landlord. See the recentcases of the Earl of Lisburne v. Davies L.R. 1 C.P. 259 and Whitmore v.Humphries L.R. 7 C.P. 1.

4. And this rule applies to all lands so encroached upon,whether the landlord has any interest in it or not. If a tenant, during histenancy, encroaches upon the land of a third person, and holds it with his owntenure until the expiration of the tenancy, he is considered to have made theencroachment, not for his own benefit, but for that of his landlord; and if hehas acquired a title against the third person by an adverse possession, he hasacquired it for his landlord, and not for himself. See Kingsmill v. Millard 11Ex. 313; Andrews v. Hailes 2 E. and B. 349 and this doctrine appears to havebeen adopted here in the case of Goroo Doss Roy v. Issur Chunder Bose 22 W.R. 247as well as in other cases.

5. It is true, that by the English law, if it could bedistinctly proved that the tenant made the encroachment adversely to hislandlord, an adverse possession for 12 years might then give the tenant a titleby limitation; and probably that would be so in this country.

6. But that was clearly not the case in this instance,because the plaintiff himself in his plaint claims the land in question as partof his taluq.

7. The only possible ground, as it seems to us, upon which aperson in the plaintiffs position could claim to retain possession of the landso encroached upon, would be, that the landlord had either expressly orimpliedly acquiesced in the encroachment; or, in other words, that he hadallowed the tenant to add the area encroached upon to his holding.

8. It might be supposed from the language of the judgment inthe case to which we have last referred that the learned Judges there intendedto lay down the rule more broadly, and to say that in all cases, whether the encroachmentswere made with or without the landlords consent, the tenant making it had aright to retain the land so encroached upon till the end of his tenancy. But wehave consulted our brother Mitter as to this, and we find that it was by nomeans the intention of the Court in that case to lay down the rule thusbroadly.

9. It would, indeed, seem strange if, as a matter of law, atenant were allowed, without his landlords permission, to appropriate any landwhich adjoins his own tenure, and then when his landlord complained of thetrespass, and required him to give the land up, he were allowed to takeadvantage of his own wrong, and insist upon retaining possession of it, untilthe expiration of his tenure.

10. In this particular case, however, it was no part of theplaintiffs case that the zemindar, either expressly or impliedly, hadconsented to the encroachment. His case in the first instance was, that theland in question formed part of his original taluq. That has been negatived byboth the Courts.

11. He then contended that he had held it adversely to hislandlord; but that, for the reasons already given, we have found to beuntenable.

12. The result, therefore, is that the appeal must bedismissed with costs.

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Nuddyarchand Shaha and Ors. vs. Meajan and Ors. (10.06.1884- CALHC)