H. Deka, J.
1. This appeal was remanded to the trial court for a finding on two issues that were framed at the appellate stage by the High Court. Those issues were as follows:
'(1) Whether the plaintiff has title to the property in suit (namely, both land and house)--and he was in possession thereof within twelve years prior to the institution of the suit;
(2) Whether the plaintiffs title was eclipsed by virtue of adverse possession of the defendant.'
The case was sent down to the learned Munsiff for recording evidence and forwarding the same to this court with his finding on the two issues. The learned Munsiff accordingly forwarded the evidence and his findings on the two issues covered by his judgment dated 26-11-58 and the appeal has come up for final disposal. The findings of the learned Munsiff on the two issues were in favour of the plaintiff and he held that the plaintiff had title to the property in suit, namely, both the land and the house and he was in possession thereof within twelve years prior to the institution of the suit. He found further that the defendant had failed to prove adverse possession for twelve years or more in respect of the house or the land in suit.
2. The learned Advocate General appearing for the appellant has urged before me that the findings are conclusive and that the plaintiffs suit should be decreed on the basis thereof. Of course these findings cannot preclude the High Court from going into the evidence, since the remand was under Order 41. Rule 25 of the Civil Procedure Code and this court could examine the evidence if it was thought necessary, but what has outstandingly appeared from the judgment of the Munsif itself is that the plaintiff had failed to prove any subsisting interest in the land on which the disputed house stands. The learned Munsiff in the course of his judgment observed as follows:
'The plaintiffs suit is for ejectment of the defendant from the house in suit and delivery of vacant possession thereof but it is not for any land. The plaintiff does not claim any title over the land. From the evidence on record it is clear that the land originally belonged to Dibru-Sadiya Railway and was acquired by the State in 1945.'
The learned Munsiff discussed the history of the land and he found that the house in suit stands on the Railway ground forming plot No. 33. These plots were settled with the plaintiff early in 1938 by the Dubru-Sadiya Railway by several agreements of lease from year to year. They allowed the plaintiff to possess the land only for a year covered by the lease and to give vacant possession after the termination of the period, unless fresh settlement was granted. From 1-1-44 no lease was granted though the plaintiff continued in possession by paying rent for the year 1943-44. The learned Munsiff held that though the plaintiff was not granted lease by the Railway after 1944 or they refused to receive any rent from him thereafter, the plaintiff's right as a tenant continued by right of holding over. He further found that there was definite evidence to prove that the plaintiff was in possession of the land till 1944. Thus he found in answer to issue No. 1--that the plaintiff was in possession of the land in suit and house standing thereon within twelve years of the institution of the suit, the suit being filed on 17-8-54.
3. It has been contended by the defendant that the plaintiff had no subsisting interest in the land in suit, since no lease was granted or permission given to him to possess the land after 1945 when the land was acquired from the Dibru-Sadiya Railway by the Union Government. This position is admitted, but what we have to consider is whether there was holding over in the eye of law after the termination of the earlier lease by lapse of time by the end of March 1944, upto which date rent was received by the previous landlord.
4. Section 116 of the Transfer of Property
Act which relates to holding over is in the following
'116. If a lessee or under-lessee of property remains in possession thereof alter the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee Or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.'
5. In this case admittedly there was termination or the lease as will appear from the annual lease's that were produced. It is not enough for (the purpose of holding over that the possession should be continued after the termination of the lease but the lessor or his legal representative should also accept rent from the lessee or under-lessee or otherwise assent to his continuing in possession. In this case the plaintiff admitted that the landlord bad refused to accept rent, nor did he adduce any evidence to prove that the landlord, assented to his continuing in possession after the termination of the lease.
Therefore applying the test laid down in section 116 of the Transfer of Property Act, it could not be held that the plaintiff had subsisting right of tenancy in respect of the land on which the house stood. He had therefore no right of re-entry to possess the land by ousting the defendant. Mr. Lahiri for the appellant has contended that since the Union Government has not objected to the plaintiff continuing in possession, it should be presumed that he obtained the assent of the Union Government. But this presumption is not possible since the Union Government is not a party nor has any evidence been produced to that effect.
On the other hand it appears from the evidence adduced by the plaintiff himself that he had already obtained compensation for the houses that were requisitioned from him on or about 19-6-44 for Military purposes. It was also proved that he had obtained compensation to the extent of Rs. 1,380/-on 4-8-54 but he had not tried to re-enter the houses or obtain fresh lease. Therefore the presumption if any, must be against the plaintiff as to the assent of the landlord for allowing the plaintiff to continue in possession.
The result is that I consider this finding of the learned Munsif to this extent to be faulty, namely that the plaintiff was entitled to enter the land or had any subsisting interest therein by virtue of holding over. I must accordingly hold that the plaintiff could not evict the defendant from the land on which the house stood. It is of course found as a fact that the defendant had trespassed into a room or a house of the plaintiff as is variously stated by the plaintiff at different times, but his right to recover possession of movable property or restoration of the same would lapse after three years.
The house apart from the land must be considered to be a moveable property. In my opinion the claim will come under Article 49 of the Limitation Act which prescribes a period of three years from the time when the property is wrongfully taken or injured by the defendant. Here the plaintiffs case was that the defendant had entered into a room of his house and he had transformed the room into a habitable building.
Therefore in law the plaintiff would be entitled only to compensation for the materials which were his, and he cannot avail of twelve years limitation for this purpose. Therefore in my view the plaintiff's suit should fail on the ground of absence of title to the land and by law of limitation for the price of the property or the house illegally possessed by the defendant. The plaintiffs original case was that the defendant was a tenant and that he failed to prove.
6. Mr. Lahiri has further contended that assuming that both the plaintiff, and the defendant had no title to the land in suit, the plaintiff being in earlier occupation of the land in suit, even though without any title, should be allowed to re-enter the land and house by ousting the defendant, since he has no better title. In this connection he drew my attention to a passage occurring in the 'Indian Contract and Specific Relief Acts, Eighth Edition edited by Pollock and Mulla, occurring at page 753 to the effect that if a suit be instituted for recovery of possession more than six months after the alleged dispossession by a trespasser who has no title to the property, the suit can succeed on the basis of possession alone as is the view held by some of the High Courts, namely Bombay, Allahabad, Madras and Patna; whereas the Calcutta view is that the plaintiff cannot succeed unless he proves acquisition of title by virtue of possession.
The opinion of the commentators is that the view held by Bombay, Allahabad etc. is a sounder view than the one held by Calcutta as the other view is based on the English doctrine as now settled. I With great respect to the commentators, I must hold that the plaintiff is entitled to succeed only if he proves his case to recover possession on the basis of some right and unless he establishes such right, the court should give no recognition to his claim of re-entry, more particularly when the party interested in title is not impleaded in the suit or proceeding. It is immaterial even if the defendant be a trespasser, since the plaintiff can succeed only on the strength of his own title and not on the defect of the title of the defendant, as is also an established principle in law.
The Calcutta view is represented by the decision in the case of 'Nisa Chand Gaita v. Kanchiram Bengani' reported in ILR 26 Cal 579. The point formulated therein was whether the plaintiff was entitled to a decree merely upon proof of previous possession for a period less than twelve years on the ground that the defendant has established no title,--the suit having been brought more than six months after the date of dispossession. Their Lordships expressed themselves in the following words:
'If it were necessary to give reasons in support of this view, we should say that in a suit to recover possession brought more than six months after the date of dispossession, the plaintiff must prove title, and mere previous possession for any period short of the statutory period of twelve years cannot be sufficient for the purpose, because, if that were so, anomalous results might arise; and it would be difficult to determine what should be the relative durations of possession of the plaintiff and the defendant to entitle the former to a decree.'
I fully agree with the view stated above and in my opinion the plaintiff having failed to prove any subsisting right to the land in question, cannot be
allowed a decree for possession by evicting the defendant or by entering into the house standing thereon.
The result is that the appeal is dismissed but in the
circumstances of the case I make no order for costs.