1. This is a second appeal by a defendant, Daya Shankar, against whom the lower appellate Court has decreed possession of a certain plot of land to the plaintiff. The plaintiff set out in his plaint that he was a lambardar and zamindar in an agricultural mahal and that the defendant took unlawful possession of plot No. 697, 7 biswas of land, without any right and set up a tiled shed and kept coal and ashes for three years without the consent of the plaintiff. The written statement alleged that plaintiff was not the owner of any portion of the plot and had never been in possession within the last 12 years. In para. 10 it was pleaded that Pandit Ganga Prasad was the owner of this plot and that the contesting defendant took possession from him and had cultivated the plot for about 18 years. In para. 11 it was alleged that the Contesting defendant had been in adverse proprietary possession of that portion of the plot on which he had his tiled shed for more than 16 years. The main issues were: '(1) Whether plot No. 697 belongs to the plaintiff or does it belong to Ganga Prasad? (2) How old are the khaprail and kothries and has the defendant become owner of the land beneath them by adverse possession?' The Munsif found:
I accordingly hold that it has been proved by reliable oral evidence that the khaprail, etc., has been in existence for the last over 12 years and defendant has become owner of the land underneath, i.e., the plot in dispute by openly being in adverse possession against the plaintiff;
and the Munsif accordingly dismissed the suit. The plaintiff appealed. The lower appellate Court pointed out that the number in question, 697 of 7 biswas in extent was bounded on the south by the Grant Trunk Road and on the north by certain fields belonging to Ganga Prasad also called Gaya Prasad, that these fields had been cultivated by the defendant for between 16 and 18 years as a tenant of Ganga Prasad; that the defendant was using plot No. 697 in dispute for the storage of line and cinders and had erected a khaprail or tiled shed where his workmen lived and also a shed with a tin roof. On pp. 35 and 37 the lower appellate Court followed the Munsif in believing the witnesses for the defendant as regards the period of time at which the structures had existed, and on pp. 40 and 41 the Court held:
All that I can really find is that this shed with a tiled roof to it has been in existence for about 16 to 18 years and that it is, as the defendant says, built of kuohcha walls with pucca pillars outside, and is about five feet high and is rather long; how long there is really no evidence to say. I may mention that Jugal Kishore, who has however now been discredited, says that the tiled roof shed was placed on a kuchcba foundation and is 1 1/2 to 2 hands high and that the defendant's servants live there.
2. On p. 43 the judgment says that the small piece of waste land between the fields and the road was taken by the defendant under the erroneous impression that it belonged to his zamindar Ganga Prasad, and erected this shed of kuchcha bricks with pucca. outer pillars about five feet high with a tiled roof and also a temporary structure with a tin roof which has been moved from time to time. It is clear therefore that the structures are both of a temporary nature. The kuchcha bricks built apparently not in masonry but in gara are easily removable as well as the, tin shed. The Court also stated on p. 41:
The defendant in examination in chief said that his putting up of the shed with a tiled roof 16-18 years ago was objected to by the plaintiff's Karin-das - he evidently means objected to at or about the time it was put up - and he says that he told these men that unless they had the boundaries cleared he would not give the land up to them. That means of course that the defendant was not certain whether the land was in the plaintiff's mahal or in Ganga Prasad or Gaya Prasad's mahal and that until the plaintiff had this matter definitely settled he was not going to give up the land to a man who might not be entitled to it.
3. In cross-examination the defendant stated:.that he did not try to find out whom the land really belonged to. He intended to purchase from whoever was proved to be its owner, and in the meanwhile he was content to remain in possession and use of the land. He said as a witness that he had no intention of keeping possession of the land by force,
4. and on p. 44 the Court finds:
The defendant had at that time no intention of holding on to the land by force. He was prepared to band it over to whoever might be proved the rightful owner; but he would have preferred if he could have induced the rightful owner to do business, to buy the land from the rightful owner, or alternatively to rent it. As a matter of fact the rightful owner was the plaintiff; and the plaintiff having remonstrated in this way somewhere about 16-18 years ago, did nothing further until 1933, when he remonstrated again and followed that up almost immediately by bringing the present suit.
5. The conclusion of the Court is on p. 44:
It hardly seems to me that the facts, as I have tried to set them out, establish a case of adverse possession It appears to me that all they establish is this: that the defendant entered into possession of the land and started to make use of it under the erroneous impression that it belonged to Ganga Prasad or Gaya Prasad and that when the plaintiff objected that it was his, the defendant did not deny the plaintiff's title but merely pointed out that Ganga Prasad or Gaya Prasad was also saying that it was his, and that before he could either hand the land over or rent it or buy it, he must be satisfied who really was the true owner, the plaintiff or Ganga Prasad.
6. On p. 46 the Court finds:.the plaintiff was in law in constructive possession though not in actual physical possession,
and that the proved facts did not amount to dispossession within the meaning of the law. The Court has also stated on p. 37 that the plaintiff is a very big zamindar and there is no reason why his mukhtarams should know anything about the case. It appears therefore that the small area of seven biswas is isolated from the rest of the mahal of the plaintiff by the Grand Trunk Eoad and that until records were carefully examined and measurements made no one was aware of whether this particular area of seven biswas was in the plaintiff's mahal or in the mahal of Ganga Prasad and no claim to adverse possession was ever made by the defendant but the defendant stated that he thought that Ganga Prasad was the owner. It is not until the written statement was filed that any case was ever put forward, that the defendant himself had by adverse possession acquired any proprietary right, and that the same time that he makes that pleading in para. 11 he makes the pleading in para. 10 that Ganga Prasad is the owner Learned Counsel for appellant relied on Nutbihari Das v. Bishweshwari Debee : AIR1933Cal414 . That was a case as stated by the head-note where a trespasser on land admits when the owner challenges his possession that a portion of the land belongs to the owner but declines to vacate it in spite of demands, then he dispossesses the owner of the whole of the land and his possession is adverse to the owner. In order to eject the trespasser the owner must bring a suit within 12 years from such dispossession under Art. 142, Lira. Act. The ruling on p. 46 where the passage appears which forms the head-note deals with the case of a definite refusal to vacate the land by the person in occupation, and it was held that such a definite refusal did amount to dispossession. The ruling is that of a Single Judge. But the ruling has no application to the present case because it is not found as a fact that there was any demand by the a3topts of the plaiatiff that the defendant should vacate the land.
7. All that is stated in the evidence of the defendant was that some objection was made by an agent of the plaintiff to the construction, and there was no demand that the defendant should vacate the land; nor was there any refusal on his part. Eeference was also made to Srishchadra Nandy v. Baijnath Jugal Kishore . But that case does not appear to have anything to do with the present case. On the point that the correct article to apply would be Article 142 and not Article 144, reference was made to Bindhyachal Chand v. Ram Gharib Chand : AIR1934All993 . But the Court below appears to have applied Article 142 and this question is not in contest. On the other hand the respondent alludes to certain rulings which do appear to apply to the case. One of these is reported in Kashim Abbas v. Hans Ram : AIR1929All883 . This was a case like the present where there was possession by a tenant in the village of a parti plot of land belonging to a zamindar and it was held that the use of such parti plots of land is common and does not easily arrest the attention of the zamindar and such possession far from being adverse must be deemed to be permissible. Reference was made to the cases reported in Framji Cursetji v. Gocul Das Madhowji (1892) 16 Bom. 338, Chockalinga Naicken v. Muthusami Naicken (1898) 21 Mad. 53 and Bechu v. Lachmi Kuar (1910) 8 I.C. 708
8. It appears to me that in the present case the position of this small isolated plot of uncultivated ground was such that the attention of the zamindar would not be specially directed to the question of whether it was in his mahal or in the mahal of Ganga Prasad. The mere non-interference with the temporary occupation of this plot by the defendant, who was a tenant of Ganga Prasad in the adjacent fields, would not in my opinion constitute any adverse possession, and the Court below was correct in holding that the plaintiff continued his constructive possession and that it could not be said that the plaintiff was out of possession within the meaning of Article 142, Lim. Act. Accordingly the suit was not barred by limitation and the decree of the Court below was correct. I therefore dismiss this second appeal with costs. No ruling has been shown which would apply for the defendant-appellant in the present case and therefore I refuse permission for a Letters Patent appeal.