1. The question involved in this second appeal is whether the Court below was wrong in holding that the defendant-appellant was not holding adversely to the plaintiff-respondent.
2. The appeal arises out of a suit for assessment of rent over a certain plot No. 38. It has been found that the appellant is a tenant of the respondent of a large area of land measuring 11.16 acres paying Rs. 119, as rent. One of these plots held by the appellant as a tenant is No. 37, which lies on the border of the plot No. 38, which is in dispute. The plaintiff alleged that the defendant occupied the plot No. 38 without payment of rent and asked for assessment of rent. The appellant's plea was that he held the land adversely to the plaintiff and had thus become the owner thereof. The suit was filed before an Assistant Collector. He remitted an issue to the Court of the Munsif as to the title to the land. The Munsif held that the appellant had matured in himself a proprietary title by adverse possession. The learned District Judge has reversed this finding of the Munsif which was adopted by the learned Assistant Collector as he was bound to do.
3. There can be doubt on the facts that taking advantage of his position as a tenant of plot No. 37 the appellant took possession of the adjoining plot No. 38 which has a very small area, namely, 22 acre. It is not alleged by the defendant that the fact, that he was occupying the land over and above the land which his was legitimately entitled to occupy as a tenant, was ever brought to the notice of the plaintiff within 12 years of the suit. It is settled law that a tenant cannot hold adversely to his landlord by the mere fact of encroachment : see Gooroo Doss Roy v. Issur Chunder Bose (1874) 22 W.R. 246 which was followed in Muthurakkoo Thevan v. R.G. Orr (1912) 35 Mad. 618, and also the case of Jogendra Nath v. Jagadindra Nath A.I.R. 1921 Cal. 577. The defendant's statement was read out to me. He does say that he was asked to pay rent and he refused to do so, but he does not say that this happened more than 12 years prior to the institution of the suit. I bold that the Court below was right in holding that no adverse proprietary possession for over 12 years had been established by the appellant.
4. A new point was sought to be taken, namely, that no suit for fixation of rent could be brought, as the necessary ingredients of fact mentioned in Section 45, Tenancy Act, 1926, did not exist. This point was not taken in the Courts below and not even in the grounds of appeal to this Court. A new point of law may be urged in second appeal, provided the facts found are sufficient for the determination of the point. Such is not the case here, and therefore this point could not be urged successfully.
5. The result is that the appeal fails and is hereby dismissed with costs. Mr. Baleshwari Prasad asks for leave to appeal. It is refused.