Wort, Ag. C.J.

1. The subject-matter of this appeal is a triangular piece of land in or adjoining the town of Purulia at one time the village Purulia, which is owned by the Raja of Panchete. The land is approximately 15 acres in area. The defendants are the appellants in this appeal which arises out of an action by the plaintiff for a declaration of his title to and a claim for possession of the land in suit in the following circumstances:

The Raja of Panchete granted a lease of some land to the Crown, defendant No. 1, in this case, (so it is alleged) in or about the year 1835, and at some later date--the exact date has not been established in this case and is immaterial--granted a patni lease of Mauza Purulia to the pre-decessor-in-interest of defendants Nos. 2 to 5. On September 3, 1926, these patnidars defendants Nos. 2 to 5, granted a lease of the land in dispute to the plaintiff at an annual rent of Rs. 118-2-0 and in consideration of a premium or salami of Rs. 15,000. It is alleged by the plaintiff that in seeking to take possession of the land he was resisted by one Jimat Bahan Sen who claimed an interest in a part of the land the particulars of which are set out in Schedule 2. of the plaint, under a lease. It has been suggested in this case that a part of the land in dispute was in the adjoining village of Naudiha but this point has not been developed by either party in this case. Proceedings under Section 145 Criminal Procedure Code, were started and the Crown, intervening and represented by the police, was joined as a party. The claim of the Crown in those proceedings was that the land in dispute was a part of the Government lands and used by the Police as a parade ground; and that this land was included in the lease granted by the Raja of Panchete in 1835 or thereabouts, the lease to which I have just referred. The Magistrate deciding the proceedings came to the conclusion that the Crown was in possession of the land, and that it was used for the purpose I have mentioned. The plaintiff thus being ousted, or being held not to be in possession, commenced this action against the defendants, their lessors. The claim was for a declaration of his title, possession and alternatively the return of the premium paid, and other expenses.
2. The trial Judge has held that defendant No. 1, the Crown, was entitled to the land under the lease of 1835 and that the Crown is in possession, the lease including the land in dispute, and that consequently defendants Nos. 2 to 5 had no right to grant the land to the plaintiff in 1926. There is no dispute that the patni lease was subject to the lease to the Crown whatever may have been included in the latter. The Court below in those circumstances has given judgment for the plaintiff for the return of the salami or premium. Defendants Nos. 2 to 5 have appealed to this Court making the Crown and the plaintiff-respondents. The case of the appellants is that the disputed land was not comprised in the grant to the Crown by the Raja, and that, therefore, they were entitled as patnidars to grant the lease to the plaintiff, and, in those circumstances, the plaintiff is not entitled to the return of the premium. As an alternative plea the defendants-appellants contended that this claim for the return of the premium is barred by limitation. Defendant No. 1, the Crown, supports the finding of the Judge in the Court below as to its title, and the plaintiff-respondent naturally supports the judgment of the learned Judge in the Court below as to the return of the premium or salami.

3. In the circumstances the question to be decided is a very limited one. It is whether in the grant to the Crown in 1835 this triangular piece of land was included, and, as it will be seen, it becomes a question in the result of identification. A number of facts were not disputed in the trial Court, nor are they disputed in this Court. First, it is not disputed that the Crown had two leases of land in Purulia, one with a rental of Rs. 11-7-0 relating to some land adjoining the land in dispute with which we are not concerned, and another a lease relating to 35 acres 25 poles of land with an annual rental of Rs. 40-11-6. Included in that second lease was some land known as the parade ground. Secondly, it is not disputed that subject to the grant to the Crown defendants Nos. 2 to 5 became patnidars of the then village of Purulia. Lastly, the rent reserved under the second lease to the Crown has admittedly been and is being paid to the patnidars, defendants Nos. 2 to 5. As I have stated, the matter in the result becomes a question of identification.

4. The learned Judge in the Court below has pointed out that the plaintiff admits that the Crown is entitled to some land which used to be described as a parade ground, and I do not think there can be any very serious dispute that at the present time, at any rate, the land in dispute is known locally as the parade ground. The matter would have been very simple had it not been for the fact-again a fact which is not disputed, that the original patta to the Crown of 1835 was destroyed when the record room of Purulia was burnt down in the Mutiny. It was in those circumstances that the Crown in this case in establishing its title was forced to rely upon what is said to be secondary evidence of the patta and a number of other documents including maps which, if admissible, would go to show that a piece of land known as the parade ground, which admittedly the Crown was entitled to, was this very piece of land which is in dispute in this action.

5. It has been stated that the area to which the Crown is entitled under this lease is 35 acres 25 poles and Mr. Sushil Madhab Mullick for the appellants in arguing this case has advanced an argument which was not addressed to the Court below. By a reference to certain documents he would have this Court hold that if the triangular piece of ground known as the parade ground is included in the parcel of land to which the Crown is entitled to possession under the lease of 1835, then the Crown will be shown to be in possession of an area considerably in excess of 35 acres 25 poles, and, therefore) the disputed land cannot have been included in the lease. It is unfortunate that this point has been raised in this Court for the first time. A. Commissioner was appointed by the learned Judge in the Court below to take certain measurements which he has done by relaying maps, but no actual measurement of all the parcels of land now in possession of Government (including the triangular piece of land) was taken, and the result is that we are entirely without any materials, apart from references to maps, which will enable us to compare the admitted area of 35 acres with the area of the land actually in possession of Government. It would be most unsafe, if not improper, for us now to decide this case in the absence of those materials and we can only imagine that the reason why those materials were not forthcoming in the Court below was that they would not necessarily support the case of the party now advancing that particular line of argument.

6. The arguments on both sides were mainly concerned with the documents and oral evidence relied upon by the Crown in support of its title. As already indicated in the absence of the original lease to the Crown of 1835, it has sought to establish its right by showing that it has in fact been in possession of the land certainly since about 1862, if not before and by relying upon this possession as I have said, as evidence of its title and also failing proof of that to establish a title by adverse possession. (After giving the history of the disputed land, His Lordship proceeded :) Having regard to the fact that the only question in dispute is the identification of a parade ground admittedly in possession of Government with the land in dispute, it seems to me quite clear that the only inference that can' be drawn from these documents is that the identification has been established. It was faintly argued that these maps and registers were not admissible. The learned Judge in the Court below has admitted them under Section 13, Evidence Act, but as these documents, many of which were prepared by people who must now be dead and certainly whose whereabouts cannot be traced, they would be admissible under Sub-section 2, Section 32 together with Section 13, Evidence Act as being statements asserting possession over the land in dispute.

7. There was a further fact upon which the appellants relied. That was a letter by Mr. Toplis, Deputy Commissioner of Manbhum, addressed to the present plaintiff immediately after he had acquired the lease which was the subject-matter of this dispute. The letter states that the writer understood from the Inspector-General of Police that the Government desired to acquire the land where the Police at present hold there parades so that there would be no difficulty about the Police parading there. This letter was answered on December 15, 1926. To this is a further note made by Mr. Toplis on January 10, 1927, in which he states that there was some uncertainty as to the title to this ground which had been purchased recently the area of which is 22 bighas. These documents are taken to be admissions by the Crown that it had no title to the property, but having regard to the last note of January 10, 1927, the most that can be said that there was some doubt with regard to the matter. If it be a fact that the Government had title as I have now held it had the statements by the Deputy Commissioner in the circumstances would be of little avail to the appellants. The circumstances under which these letters were written were that the plaintiff having acquired his lease appears to have gone to Mr. Toplis and discussed the question of the Government acquiring the land with him, with the result now disclosed in the letters. No further action was taken in the matter as shortly afterwards proceedings out of which this case arose were started.

8. So far as has been necessary for the Crown to establish its title after the admissions which have been made by showing itself in possession of this particular piece of land, 1 think the Crown has succeeded. The appeal in so far as it relates to the rights of the Crown fails. There comes next the question of the appeal by defendants Nos. 2 to 5 against the alternative claim of the plaintiffs for the return of the salami. Two questions have been argued, one that the plaintiffs were not entitled to recover the salami under any circumstances by reason of the agreement between the parties, and secondly, that the claim is barred by limitation. Mr. Sushil Madhao Mullick relies strongly upon the provision in the patta Ex. 1 to the effect that on no account you, your heirs or successors will ever get back the said amount of premium or will be competent to claim a refund thereof." The premium referred to is the one now claimed of Rs. 15,000. The passage relied upon is only one part of a clause which is to the effect:

Be it known that on payment of the amount of rent you as well as your heirs and successor-in-interest shall possess and enjoy the leased out land from son to grandson in succession with power to transfer the same by sale or gift, etc.
and then comes the provision relied upon. The clause must be taken as a whole and it seems to me quite clear that the clause referring to the return of the premium admits of only one construction and that is that the premium is not returnable if the lease is effective. It can have no possible relation to circumstances in which the consideration has wholly failed.

9. The result of this judgment is that the lease must be held to be void inasmuch as the defendant-appellants had no right to make such a grant and under those circumstances under Section 65, Contract Act the plaintiff is entitled to the return of the money paid by him to defendants Nos. 2 to 5. The next question is whether this claim is barred by limitation. Two points are argued, first that the relevant Article of the Limitation Act is 65 or 97 ; secondly, that limitation runs from the date of the payment and that the action is therefore barred as the payment was made in September 1926 ; this action having been commenced in September 1931. It is argued however by the respondent plaintiff that neither of the articles referred to applies but Article 116 which gives a period of limitation of six years in the case of a claim for "compensation for breach of a contract in writing registered." Reliance is placed upon Tricamdas Cooverji v. Gopinath Jiu Thakur 44 IA 65 : 39 Ind. Cas. 156 : AIR 1916 PC 182 : 44 C 759 : 1 PLJ 262 : 15 ALJ 217 : 25 CLJ 279 : 32 MLJ 357 : 21 MLT 262 21 CWN 577 : (1917) MWN 363 : 5 LW 654 : 19 Bom. LR 450 (PC). In that case a claim was made for royalties under a mining lease and it was argued that the claim was virtually one for rent as such governed by Article 110, Limitation Act, which provided a period of three years for such actions. Lord Sumner delivering the opinion of their Lordships discussed the history of the Limitation Acts in India and the almost unanimous decisions of the Indian High Courts in favour of Article 116 and stated that the omission from the Article in the Act of 1877, of the words "not herein specially provided for" which in his Lordship's opinion was critical. Lord Sumner also stated that these Acts as the Act of 1859 had drawn a broad distinction between unregistered and registered instruments much to the advantage of the latter. The view that this Court has taken of their Lordships' decision in a case in which a similar claim to that made in the present action, is that Article 116 applies in all cases of claims under registered contracts of which the present lease is one. The case referred to is Nabin Chandra Ganguli v. Munshi Mandar AIR 1927 Pat 248 : 8 PLT 590 : 6 Pat. 606 : 101 Ind. Cas. 707 , which settles the matter so far as this Court is concerned. In the case in Juscurn Boid v. Pirthichand 46 IA 52 : 50 Ind. Cas. 444 : AIR 1918 PC 51 : 46 C 670 : 17 ALJ 514 : 36 MLJ 557 23 CWN 721 : 21 Bom.LR 632 : (1919) MWM 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC), their Lordships of the Judicial Committee of the Privy Council applied Article 97 but there was no argument addressed on this point and it is not known whether the contract there involved was registered or not. From the other point of view that is to say that the period of limitation was three years it is said that the action is not barred as time does not run until the contract is pronounced to be void judicially and reliance is placed upon the decision in Hamath Kuar v. Indar Bahadur Singh 50 IA 69 : 71 Ind. Cas. 629 : AIR 1922 PC 403 : 26 OC 223 : 45 A 179 : 9 O & ALR 270 : 9 OLJ 652 : 44 MLJ 489 : 37 CLJ 346 : 27 CWN 949 : 18 LW 383 : 33 MLT 216 : 5 PLT 281 : 2 Pat.LR 237 (PC). But in the view I take that Article 116 applies, it is unnecessary to deal with this point. By the appellant it was faintly argued that the plaintiff did not pay the premium but having regard to the fact that there was no denial in the written statement or evidence that Rs. 15,000 had not been paid this contention is not tenable. Nor was there any serious argument addressed to us by the plaintiff respondent that he was entitled to recover more than has been allowed him, nor any argument by the appellant that the plaintiff was not entitled to the costs of the execution of the lease contrary to the decision of the trial Judge on these points. The appeal fails and is dismissed with costs.

Saiyid Fazl Ali, J.

10. I agree.