Michael Westropp, C.J.
1. This is a suit in which the plaintiff seeks to obtain a share in ancestral property in the possession of the defendant, whom the plaintiff alleges to be united with him in estate. The plaintiff admits that he has lived separate from the defendant for forty years previously to the institution of this suit in the year 1873, and that he (the plaintiff) has not, during that period, received any portion of the produce or profits of the ancestral property.
2. Reg. V of 1827, Chap. I, Section 1, Clause 1, enacted that 'whenever lands, houses, hereditary offices, or other immoveable property have been held without interruption for a longer period than thirty years, whether by any person as proprietor, or by him and his heirs, or others deriving a right from him, such possession shall be received as proof of a sufficient right of property in the same.'
3. That section has, both in the Sadr Adalat and in the High Court, been held applicable to suits, such as the present, to recover a share in undivided immoveable estate belonging to a Hindu family: Girdhur Purshotam v. Govind Kasidas 7 Harr. S.D.A. Rep. 371, Guravi v. Guravi 3 Bom. H.C. Rep 170 Rane v. Rane 3 Bom. H.C. Rep. 173.
4. Of Section 1, Chap. I, Reg. V of 1827, Sir. J. Colvile in giving the judgment of Her Majesty's Privy Council in Maharana Fetesangji v. Desai Kalianrayaji 10 Bom. H.C. Rep 281; Section C, 1 In. App. 34, says that it is 'an enactment which, inasmuch as it relates only to the acquisition of a title by positive prescription, seems to be unaffected by Act XIV of 1859 and to stand unrepealed in the Presidency of Bombay.' In saying that it was unrepealed in the Presidency of Bombay, their Lordships, who gave their judgment in 1873, only meant, as the context shows, that it was hot repealed by Act XIV of 1859. It was expressly repealed by Act IX of 1871, Section 2 and Sch. I.
5. Act XIV of 1859, Section 1, Clause 13, also applied to such suits as the present, but the whole of that Act, except Section 15 (which has no bearing on the present case), has been repealed by Act IX of 1871, Section 2, sch. I. The Courts below have held that this suit is governed by sch. II, Article 127, of that repealing Act, and that, as no demand by the plaintiff of his share and refusal to comply with such claim had been proved, his suit is not barred by that Act.
6. But the defendant had, in our opinion, acquired a prescriptive title in the immoveable estate, the subject of this suit, by his uninterrupted possession as proprietor for more than thirty years previously to the passing or coming into force of Act IX of 1871. Any Court in which his title was agitated, whether in a suit brought by himself, or by the plaintiff, would have been bound, on satisfactory and conclusive evidence of the defendant's uninterrupted possession as proprietor for more than thirty years, to have received such evidence as proof of a sufficient right of property in the immoveable estate. In short, the effect of Reg. V of 1827, Chap. I, Section 1, was not merely to bar the present plaintiff's remedy, but to take away his right.
7. The repeal of a statute or other legislative enactment cannot, without express words, or clear implication to that effect, in the repealing Act, take away a right acquired under the repealed statute or other enactment while it was in force: Restall v. London and South Western Railway Co. L.R. 3 Exch. 141, Oldreeve v. Puckridge L.R. 3 Exch. 145.
8. With reference to the Bengal Regulations of Limitation (III of 1793, Section 14, and II of 1805, see. 3,) in relation to immoveable property in the Mofussil, there are some important remarks of Sir Lawrence Peel, C.J. and Sir James Colvile in their valuable judgments in Sibchunder Doss v. Sibkissen Bonnerjee 1 Bou 70. The question there was whether the lex fori of the Supreme Court, viz., the Stat. 21, Jac. I, which required an adverse possession of twenty years, or the lex loci rei sitae, viz., the Regulations above mentioned, which prescribed a twelve-years' limit, should be applied to an action of ejectment, brought in the Supreme Court of Calcutta, to recover some lands at Tittaghur in the Mofussil. The Court held the latter to be applicable, and, accordingly, that the lessor of the plaintiff' must fail, as he was unable to prove that his right of entry had accrued within twelve years. If the right of entry ever existed, it had accrued twenty years, less four days, before the filing of the plaint, and, therefore, would have been within the statute of James. Sir L. Peel said, at page 76: 'In my opinion, the weight of authority is in favour of the position, that though a law in terms limits the suit only as to immoveable property, it in effect gives the possessor, who is protected against outstanding claims founded on original right, the property as against those persons as well as the possession. It is undoubtedly the law in all the Courts in the Mofussil, and has long been so, that, after twelve years' adverse possession, no exception applying to the case, and when all claimants are barred in those Courts as to suits, the occupant has title, and may confer title' and again, at p. 77, 'but in the case of these Regulations' (the Bengal Regulations above mentioned)' the construction which has prevailed in the Mofussil, viz., that adverse possession for the prescribed period not merely bars the remedy, but gives title, is in harmony with the presumable will of their framers, with the opinion of the most able jurists on laws as to real estate, similarly worded, and with the whole course of decisions on analogous branches of the English law;' and again, at p. 78, There may be found in the writings of Lord Coke, in reference to this subject, passages to the effect that the mere right subsists still, and that a 'right' can never be lost unless released or surrendered. But Lord Coke, if these observations were read generally and without limitation, would be putting forth rather a sort of moral or metaphysical abstraction, not founded on any clear notions of the origin and foundation of the right of property, than a legal rule of property. This legal view of the subject will be learned on reference to what he says as to the doctrine of remitter. There was no remitter to a bare title, nor to a right for which the party had no remedy by any action at all. The doctrine is thus laid down in Co. Lit. 349a--' Here it is to be understood that regularly a man shall not be remitted to a right remediless, for which he can have no action, for Littleton here saith,' &c;, &c.; It was always an established maxim in the law that a disseisor acquired the fee, that is to say, there might be a tortious fee, and consequently property, even as against the rightful owner, founded on wrong, and in the dispossessed person, property was turned to a right. In this respect there was an important difference between the disseisin of lands and the wrongful taking of goods under an unfounded claim as owner. When all rights of action and entry as to lands in all other persons were barred by efflux of time, the legal title of the disseisor, or of those claiming under him, was complete, perfect, and indefeasible;' and subsequently he adds, at page 81, 'But if the disseisor or any one under him was put out of possession, or the lands were so left as to be subject to occupancy, general or special, and the rightful owner entered where his entry was congealable, i.e., allowable, and whilst any remedy by action remained to him, then by the doctrine of remitter, which only took effect on an entry with lawful title to enter, the tenant was in of his original title, which was superior to that of the demandant. At no time in our law could a tortious entry be made the foundation of a remitter, or be available to revive 'a right' which once existed, but against which effluxion of time had set up a bar in favour of long possession.' Sir James Colvile, speaking of the two Regulations already mentioned, said at page 93: 'The wording undoubtedly shows that the law of limitation is one which in terms goes to the remedy rather than the right; and as the law applies to all subjects, if the subject here were an obligation arising out of a contract, the wording of the law would be an irresistible argument against its application to this forum. But the subject of the suit is immoveable property, and the necessary effect of the law, which takes away the remedy in that locality, is to give a title in that locality to the adverse possessor.'
9. While the Bombay Regulation named a longer period of limitation than that in the Bengal Regulations, it used distinct language to indicate that when that period had expired, the right of property should be regarded as vested in the person who had enjoyed uninterrupted possession during the thirty years, and accordingly the Privy Council, as we have seen, did not hesitate to describe Bombay Regulation V of 1827, Section 1, as an enactment of positive prescription. It, too, was specially conversant of immoveable estate, while Bengal Regulation III of 1793, Section 14, was applicable to all suits. Bengal Regulation II of 1805, Section 3, applied to immoveable property only, but was not quite so express as to the transfer of the right of property as the Bombay Regulation. However, the mention of 'a prescriptive right of property' in the 4th clause of Section 3 of Bengal Regulation II of 1805., when taken in conj unction with the other clauses in that section and with the enactment of 1793, does lead to the inference that such a transfer was worked by the adverse possession for the prescribed period of twelve years.
10. In the Privy Council case already mentioned, and to which the law of limitation applicable was that of those same Regulations, Lord Romilly said: 'It is of the utmost consequence in India that the security which long possession affords should not be weakened. Disputes are constantly arising about boundaries and about the identity of lands. Contiguous owners are apt to charge one another with encroachments. If twelve years' peaceable and uninterrupted possession of lands, alleged to have been enjoyed by encroachment on the adjoining lands, can be proved, a purchaser may take that title in safety.'
11. It is not clear from the reports of Raja Barakant Roy v. Prankkishna Paroi 3 Beng. L.R. 343; 12 Cal. W.R. 192 Civ. Rul.) whether those Regulations or Act XIV of 1859, Section 1, Clause 12, was the law applied. The same remark applies to Ram Sahoy Singh v. Kooldeep Singh 15 Cal. W.R. 80 Civ. Rul.). In Ameeroonnissa Begum v. Amil Khan 17 Cal. W.R. 119 Civ. Rul.; S.C. 8 Beng. L.R. 540, twelve years' adverse possession under Act XIV of 1859, Section 1, Clause 12, was held not only to bar the remedy, but so to transfer the right as to enable the party, who had such possession, but was subsequently ousted, successfully to maintain a suit to recover possession. The case of Grindaban Chancier Boy v. Tarachund Bundepadhya 11 Beng. L.R. 237; 20 Cal. W.R. 114 was decided in the same way and upon the same Act.
12. Purchasers have been compelled to accept a title depending upon the Statute of Limitations (3 and 4 Wm. IV., C. 27), which not only bars the remedy, but takes away the right and title of the person whose remedy is barred: Scott v. Nixon 3 Dr. & War. 388; 2 Con. & L. 185; Ir. Eq. Rule 8); Sugden's Vendors and Purchasers, pp. 389, 475, 476, Ed. of 1862; 1 Dart Vendors and Purchasers 369, 4th Ed. We think that Reg. V of 1827, Chap. I, Section 1, though not in terms so express as the English statute, but more distinct than the Bengal Regulations, has the same effect of barring the right as well as the remedy.
13. No doubt, as Lord Tenterden said in Surtees v. Ellison 9 B. & C. 750 'it has been long established, that when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it never existed;' but we consider that a title, acquired under an enactment of positive prescription such as Reg. V of 1827. before it. was repealed, is a transaction past and closed, and fully comes within Lord Tenterden's exception. Being of opinion that Act IX of 1871, although it repealed Reg. V of 1827, did not affect any prescriptive right or title which had under Chap. I, Section 1 of that Regulation, been acquired by any possessor of immoveable property before Act IX of 1871 was passed, inasmuch as neither by express words nor by clear implication does there appear to have been any intention on the part of the Legislature to take away any such right or title, it is unnecessary for us to consider this case with reference to Act XIV of 1859, or to pronounce any opinion upon the cases which have been cited for the appellant as to that Act.
14. We must reverse the decrees of the Courts below, and make a decree for the defendant (appellant), with costs of the suit and of both appeals.