1. This second appeal arises out of a suit brought by the plaintiffs-appellant for the redemption of an alleged mortgage or charge in respect of certain thok or a mahal. About the year 1875 the zamindar of this particular thok allowed his revenue to fall into arrears. For a short time the areas were taken under the direct management of the Collector and were subsequently made over to Bishambar Nath, a co-sharer of the mahal in which the thok was situated for 5 years his payment or agreement to pay the Rs. 683, the arrears of revenue, to Government.
2. The plaintiffs are the successors-in-interest of the zamindar Izat Rai, who defaulted in respect) of his revenue in 1875, and the defendants are the successors-in-interest of Bishambhar Nath, who is still in possession of the thok. The suit was in effect based on an alleged mortgage by the zamindar Izat Rai to Bishambhar Nath, and alternatively on the allegation that the procedure of Government in transferring temporarily to Bishamhbar Nath created a charge on the property in the hands of Bishambhar Nath in favour of Izat Rai or his successors. Both the lower Courts have repelled these contentions, and have held that at the expiration of the 5 years Bishambhar Nath held the thok in adverse possession to Izat Rai, or his successors-in-interest.
3. We consider that these findings are correct. The arrangement between Government and Bishambhar Nath, cannot possibly be treated as a contract between Bishambhar Nath and the zimindar Izat Rai, so that the suggestion of a mortgage is untenable. As regards the suggestion that a charge arose by operation of law, it appears sufficient to quote Section 157 of Act 19 of 1873, which was in force at the data of the transfer to Bishambhar Nath, to meet the contention. That section is as follows:
When the arrear is due in respect of a share or patti of a mahal, the Collector of the District may with the previous sanction of the Board transfer such share or patti for a term not exceeding 15 years from the 1st day of July next after the date of the sanction to any or all of the other co-sharers on condition of their paying such arrear and on such terms as the Board in each case may think fit. This procedure shall not affect the joint and several liability of the co-sharers of the mahal in which it is enforced
4. It is clear that the section does not provide for any charge coming into existence. We have referred to the Board's circulars in force at the time and do not find any provision that could have effected or created a charge, nor have the appellants referred us to any documents in this particular case on which the suggestion of a charge could be based. There is moreover no authority shown to us in support of the contention.
5. It is evident from the terms of Section 157 of Act, 19 of 1872, that Bishambhar Nath could not have been a co-sharer with the defaulting zamindar. Accordingly be got possession in his sole interest. His possession was that of a lessee of the particular area from Government. When he held over at the end of the 5 years his possession was adverse, to that of Izat Rai, who should have taken steps to recover possession. That adverse possession having been continued more than 12 years any claim in respect of the thok by a successor-in-interest of Izat Rai, was rightly held to be time-barred.
6. Accordingly we dismiss the appeal with costs to the respondents on the higher scale.