1. This is an appeal which was determined by the District Judge of Bijapur on an assumed condition of facts. The assumed facts were these: That the land in suit belonged to defendant No 2's family and that the members or a member of the plaintiff's family was an agent leasing the land out and taking rents and accounting for them to defendant No 2's family. It was further assumed that in the year 1887 this agent on behalf of defendant No. 2's family leased the land by a registered lease for eighteen years to one Ishvara; that Ishvara took possession under this lease and remained in possession until the term of the lease expired, or at least up to some time well within twelve years of the institution of this suit. Somewhere in 1893 or 1894, however, the agent and it his family asserted that they, and not defendant No. 2's family, were the owners of the land and thenceforth they kept the rents received from the tenant Ishvara and never accounted for them to defendant No. 2.
2. On these facts it was contended that however unimpeachable the title of defendant No. 2's family, that title had been lost by adverse possession beginning in 1893-94 with the assertion that I have mentioned.
3. Both the lower Courts found in the plaintiffs' favour, that is, that the title by adverse possession had been made out. We think differently, and I will give as briefly as I can the reasons which have led me to this conclusion.
4. First of all, it appears to me plain both on principle and on authority that so long as Ishvara held this land under the tenancy, ha held it as the tenant of defendant No. 2's family and their rights were just as good at the end of the tenancy as they were at the beginning, and were absolutely unaffected in any particular by the reiterated assertions made by the plaintiffs of an adverse title or by the fact that the rents were retained by the plaintiffs or members of their family, except of course that lapse of time would prevent recovery of the rents. It was suggested in argument that because the lease was executed to a member of the plaintiffs' family by name and because it was not stated that he was an agent for any one else, that he was really the landlord and Ishvara was his tenant. I cannot think of any principle of law on which this position can properly be based and I think none was indicated. The land belonged to the family of defendant No. 2, and they were the landlords just as they were the owners, and Ishvara was their tenant although his actual dealings were with their agent. So long as the tenant held possession under the tenancy he was the tenant of defendant No. 2's family. He was their tenant up to the last moment he held the land under the lease, and when he relinquished the land defendant No. 2 was at liberty to enter into possession ; or if any difficulty or opposition was offered, he could bring a suit to remove that opposition or difficulty and his right to bring the suit would date from the moment when the tenancy terminated. That was far within twelve years from the date on which this suit was brought, ~~
5. The District Judge has considered that the possession was adverse, because there was notice of adverse holding accompanied by an overt act. No doubt there was a notice that the plaintiffs' family claimed the ownership and there was an overt act in that the rent was withheld. But the difficulty in the way of this argument is this : the possession, or occupation rather, was with the tenant, and the tenant was the tenant of defendant No. 2's family, so that the occupation actually was derived from the defendant No. 2's family and the possession legally was with them. A very large number of authorities have been referred to, but out of them all I will only mention two. The first is the Secretary of State for India v. Krishnamoni Gupta I.L.R. (1902) Cal. 518, where the nature of adverse possession is discussed in relation to facts in some respects similar to those in this case. The law pertinent to the point before us is summarised in a passage at page 535 : ' In order to sustain a class from to land by limitation under the Indian Act, there must to their (Lordships') opinion be actual possession of a person claiming as of right by himself or by persons deriving title from him.' To apply that principle here we find that the plaintiffs' family had not actual possession by themselves or by persons who derived title from them. The person, in actual occupation derived title from the defendant's family. Therefore, the plaintiffs could not acquire the title by adverse possession. The other case is Bissesuri Dabeea v. Baroda Kanta Roy Chowdry I.L.R. (1884) Cal. 1076, and this is a case which is very strongly relied on by the Counsel for the respondent. It was a case in which the Zamindar, whose land was held by tenants, had his title jeopardized by the defendants in that case who had turned out the tenants and were claiming the land as against them. The Court held that though the tenancy still continued, there was a cause of action not only to the tenants but to the landlords, because their title was jeopardized. But how was it jeopardized It was jeopardized because the defendants had turnecfout the tenants and taken possession/ of the land. We are invited to apply that principle to a case Where there was no turning out of the tenant whatever, there the tenant remained in possession as the tenant, and the only way in which the landlord's rights were affected was by a statement of adverse title and a refusal by an agent to account for rents received. It is perfectly true that the defendant No. a or his family could have brought certain suits. They could no doubt have established their right to receives the rents. They could have obtained an order that the tenant was not to pay rent to any member of the plaintiffs' family r and so forth. But they could not have brought a suit for possession, because there was no cause of action which entitled or enabled them to do that. They could not in short have brought any suit which would have fallen within the words of Section 28 of the Limitation Act. That is merely another way of reaching the conclusion at which I have already arrived.
6. The proper order in the case is to reverse the decree of the appellate Court which is based on a decision of a preliminary point, viz. limitation, and to remand the case to be disposed of in the light of our finding on the issue of limitation.
7. Costs throughout to be costs in the cause.
8. I concur in the conclusion arrived at and the order proposed by my learned brother. On the assumed state of facts, upon which the lower appellate Court has decided the question of limitation, it is clear that there could be no adverse possession of the plaintiff against defendant No. 2. The tenant was in possession from 1887 and had a right to remain in possession up to 1905. During this interval defendant No. 2 had no right to recover possession. It is also clear on the assumed facts, that the property was not in the actual possession of the plaintiff claiming as of right by himself or by persons deriving title from him. He could not, therefore, sustain a claim to land by limitation.
9. Further in the present case the repudiation of title, based on the allegation that Anna was the heir of Yadneshvar in 1893, is not of such an unequivocal character as to amount to a notice to defendant No. 2 that he was going to claim the property adversely to him even if it were found that he was not Yadneshvar's heir. We have the fact that after that assertion of title, the revenue authorities decided in favour of the widow Jiwubai and did not accept Anna's claim. Subsequently in 1895 when Jiwubai died, there was an occasion for Anna to assert his title; but no such assertion was made. It is not suggested that he ever put himself forward as the heir of Yadneshvar on any subsequent occasion. I do not think it right to assume that Anna wanted to maintain the improper position which he took up in 1893, viz. that he was the heir of Yadneshvar and therefore the owner of the property in suit.
10. Secondly, the overt act, which has been relied upon by the lower appellate Court, amounts only to this that Anna received the rents from the tenant and withheld them from defendant No. 2. It is not established in this case that prior to 1894 the rents were regularly paid by Anna to defendant No. 2 from year to year. Accounts were made apparently at irregular intervals and it is difficult to say that the mere withholding of the rents by Anna at least for some reasonable time after the first assertion of his title in 1893, was such an overt act, as would suffice to make his enjoyment adverse. The present suit was brought on the 17th September 1908, and the overt act which the plaintiff must prove must be prior to twelve years before the date of the suit. It is quite possible that honestly acting the plaintiff may have made up as before his accounts in 1896 or in 1897, and withholding the payment of rents for two or three years would not in the circumstances be necessarily an overt act of such a character as would justify the finding on the question -of limitation. The subsequent withholding of rents in the present case is not a matter of much moment, because the repudiation of title and the overt act must necessarily be more than twelve years prior to suit.
11. On these grounds I think that the finding on the question of limitation cannot be accepted.