Ram Labhaya, Ag. C.J.
1. Plaintiffs sued for a declaration of their right and title to and khas possession of the land measuring about 12 B. 4 K. 13 G. covering about one-third of the land of patta no. 59. The suit was dismissed by the trial Court and the decree of the trial Court was affirmed on appeal. They have appealed to this Court.
2. The land of the entire patta No. 59 belonged to plaintiffs' father Lal Chand. Their case was that their father was in exclusive possession of the land till his death which occurred in Magh 1352 B. S. and plaintiffs came into possession after him. They were dispossessed of the land in dispute by the defendants in April 1946. Though the land sued for is said to be a plot covering about one-third of the patta land, it has not been defined in the plaint by boundaries or in any other manner. The defendants purchased the land in dispute from one Saharai, son of Joy Chand by a registered deed of sale on 10-2-1936. A mutation was attested in their favour on 1-6-1936. Joy Chand was a nephew of Lalchand, plaintiffs' father. A mutation of gift attested on 5-7-1926 shows that two-third of the patta land was gifted in favour of plaintiff 1 and Saharai by plaintiffs' father. The gift on which the mutation was based was said to be oral. Plaintiffs challenged the mutation of gift and the transfer from Saharai to the defendants as collusive. The one-third of the patta land which remained in the name of plaintiffs father till his death, was mutated in favour of the plaintiffs on 8-6-1946.
3. The Courts below have concurrently found that Saharai who sold the land in dispute to the defendants was in possession of the disputed land under the gift mutation. The oral gift and mutation that followed could not confer any valid title on him. His possession however was as that of a donee. In 1936 he sold the land to the defendants who came into possession and were in possession till the date of the institution of the suit. The allegation of the plaintiffs that they were in possession of the land till April 1946 and were dispossessed, was found not to have been substantiated. The conclusion arrived at by the Courts below was that plaintiffs' father was the owner of the suit land but plaintiffs have not proved subsisting title on the date of the suit as they failed to prove their possession within 12 years. They also found that the plaintiffs were stopped from challenging the title of the defendants by their, conduct of acquiescence and defendants were further protected as bona fide purchasers without notice of the plaintiffs' claim under Section 41, Transfer of Property Act.
4. The finding that plaintiffs were not in possession of the suit land within 12 years before suit and were not dispossessed as alleged is unassailable in second appeal. The learned counsel for the appellants has not challenged it. His contention was that the suit was based both on title and possession which terminated within 12 years before suit. Even if plaintiffs failed to prove possession and dispossession within 12 years, they could succeed by proving title unless defendants could establish acquisition of title by adverse possession for over 12 years. He pointed out that the gift did not confer any valid title on Saharai. When he sold the land in 1936 he had not acquired title by adverse possession. The defendants too could not acquire title by adverse possession as their possession also had not ripened into title by adverse possession for over 12 years.
The learned counsel is right to this extent that the gift did not confer any valid title on Saharai, the predecessor-in-title of the defendants. It is also correct that Saharai had not acquired title by adverse possession at the time when he sold the land to the defendants. He had possessed the land for about 10 years. But defendants purchased the land from Saharai. They came into possession by purchase and the adverse possession against the plaintiffs continued till the date of institution of the suit. The possession of the defendants can be tacked on to the possession of Saharai. The word 'defendant' has been defined in Section 2 (4), Limitation Act as including any person from or through whom a defendant derives his liability to be sued. In view of this definition the adverse possession of the defendants in the suit could be tacked on to the adverse possession of the person from or through whom the defendants derived their liability to be sued. As held in Nomula Narasimha v. Vasam Mangamma, 91 ind, case 556 (Mad.), the possession of the trespasser could be tacked on to the possession of a purchaser from him.
Baijnath v. Bam Bilas, A. I. R. 1924 ALL. 738 is a more apt precedent. In this case the transferee under an invalid transfer transferred the property to another person. Both the transfers were invalid. It was held that the second transferee could tack on the possession of the first as he derived his title through him. The result of the application of the view of the law enunciated in the cases referred to above is that defendants had acquired title by adverse possession long before the institution of the suit. The Courts below however have held that as plaintiff failed to establish that he bad not lost title before suit by proving possession within 12 years the case was covered by Art. 142 and plaintiff could be non-suited on that ground alone. This view also is correct, and is fully borne out by a Division Bench decision of this Court in Premeswar Das v. Madhab Chandra Das not reported so far.
In that case relying on a Full Bench decision of the Madras High Court reported in Official Receiver of East Godavari v. Chava Govindaraju, A. I. R. 1940 Mad. 798 (F. B.), it was held by this Court notwithstanding the divergence of judicial opinion on the question, that a plaintiff who claimed title and alleged possession and dispossession within 12 year before suit could succeed on proof of subsisting title on the date of the suit. The title would be subsisting if it could be shown that he had possession within 12 years before suit. Thus possession within 12 years in addition to proof of anterior title would be necessary to be proved before a plaintiff can succeed, for otherwise though there may be anterior title in the plaintiffs that title may have been lost before suit. The plaintiffs in this case did not succeed in showing their possession within 12 years. The proof of subsisting title therefore was wanting.
The Full Bench decision from the Madras High Court on which reliance was placed by this Court relied on two Privy Council decisions reported in Mohima Chunder v. Mohesh Chunder, 16 cal. 473 (P. c.) and Muhammad Amanulla Khan v. Badan Singh, 17 cal. 137 (p. c.), which have also been relied on by Mr. Ghose now. The learned counsel for the appellants relied on Mt. Allah Rakhi v. Shah Muhammad Abdur Bahim, A. I. R. 1934 p. c. 77. This however does not support his contention. It is clearly distinguishable. In this case their Lordships held that there was no doubt that the title of the land was in the plaintiff and the onus was on the appellant defendants to prove adverse possession. The property in the case was wakf.
The learned counsel has also relied on Mahomed Mahmud v. Muhammad Afaq, A. I. R. 1934 oudh 21. In this case it was observed that where the plaintiff sues for possession of immovable property both on the ground of title and on the ground of his possession having been disturbed by the defendant if he proves his title, the burden of establishing title by adverse possession lies upon the defendant, and if the defendant succeeds in proving that fact the suit must fail otherwise plaintiff is entitled to a decree. The remarks are obiter for there was no allegation of possession and dispossession in this case.
The view of the law expressed also conflicts
with the decision of this Court in Premeswar Das
v. Madhab Chandra Das if the learned Judges
meant that proof of anterior title is enough to
shift the burden of proving adverse possession on
to the defendant. I am bound by the Division
Bench decision of this Court. Plaintiff appellants
however cannot succeed even if the view expressed
in A. I. R. 1934 oudh 21 is followed. I have shown
above that defendant had acquired title by adverse
possession long before the institution of the suit.
This appeal therefore must fail on the ground of
limitation alone. It is not necessary to decide
other points that arise in the case. The appeal is
dismissed with costs.