1. This appeal must succeed. The plaintiff in the Court of first instance is the respondent No. 1 here. He purchased from the respondent No. 2, Mt. Kartari, and his sister Mt. Jeoni a half-share in what was once their father Kalyan Singh's property. The appellants, who were the defendants Nos. 1 to 4 in the Court of first instance are admittedly in possession of this property. The other half was sold by Kalyan Singh himself. There was a litigation relating to that half, between the purchasers and the present-appellants, and in that litigation the present appellants were successful. We have however, nothing to do with that case. The plaintiff said in the plaint that there was an arrangement made between Kalyan Singh and the defendants, who also had shares in the same khewats, that the defendants should manage the property and pay Kalyan Singh a certain amount of profits year by year. He further alleged that this arrangement continued up to 1911. It was clearly the idea to show that the plaintiffs' predecessors-in-interest and the plaintiff had been in possession within 12 years of the suit. The claim was for recovery of possession.
2. The defendants pleaded that they had been in adverse proprietary possession for more than 12 years and the title of the plaintiff's predecessors was extinguished.
3. The learned Subordinate Judge found that in 1860 there was a lease granted by Kalyan Singh in favour of the predecessors-in-title of the appellants, and the term of the lease was for 15 years. The rent fixed was Rs. 30 per annum. Since the expiry of the lease no rent was paid. In the view of the learned Subordinate-Judge, on these facts, the suit was time barred. The learned Subordinate Judge also considered the question whether the fact that the defendants were co-sharers of Kalyan Singh in any way favoured the plaintiffs' case. He found that even if the defendants' position be considered as co-sharers, they had definitely proved an ouster by the fact that they had never paid any rent or profit since 1870. On these facts the suit was dismissed.
4. The learned District Judge took the facts as found by the learned Subordinate-Judge. He said that the facts were tolerably clear and that the only question was the legal inference to be drawn from them. He held that the mere facts that after the expiry of the lease the defendants' predecessor-in-interest did not pay any rent, did not make their possession adverse to Kalyan Singh or his estate. He relied on the case of Jai Chand Bahadur v. Girwar Singh (1919) 41 All. 669 and decreed the suit.
5. Two points have been urged on behalf of the respondents. First, the learned Counsel appearing for the respondents has tried to support the judgment as it stands. He has further urged that the fact that the parties were co-sharers has not been considered adequately by the learned District Judge. Ha argued that the suit could not be time-barred, being as between co-sharers.
6. On the question of adverse possession there can be no doubt that a tenant who holds on to the land after the expiry of the term of the lease, cannot be said to be holding 'adversely' to the landlord, Indeed, so long as he is in possession, he cannot deny that it was from the lessor that he got the land. But this is not conclusive of the matter. Where the tenant holds on after the expiry of the lease, whatever name may be given to him, whether we may call him a 'tenant' by sufferance or not, time begins to run against the landlord from the date of the expiry of the lease under Article 139 of the Limitation Act. After the expiry of 12 years the title of the landlord must cease by the application of Section 28 of the Limitation Act. With the cessation of the right to recover the land his right to the property is also extinguished. Thus, whether the possession of the appellant's predecessors was adverse or not, in the strict sense of the word, is immaterial. Article 144 of the Limitation Act has nothing to do with the ease. On this point I may mention the case of Bisheshar Nath v. Kundan A.I.R. 1922 All. 318. The learned Judge's opinion cannot be upheld.
7. Coming to the question of the plaintiffs' position as a co-sharer, the matter seems to stand thus. In the plaint the plaintiff no doubt, alleged that the present appellants were his co-sharers in the mahal. He ignored the fact that a lease had been granted by Kalyan Singh. He made the wrong allegation that the appellants had been paying the share in the profit, harvest by harvest, up to June, 1911. The learned Subordinate Judge considered the abstract question as to whether from the fact that the appellants were co-sharers of the plaintiff, the plaintiff could derive any benefit. The definite finding is that the appellants paid nothing to the plaintiffs' predecessors-in-title in 1870 and onwards. The learned Judge drew the inference that in the circumstances there was a complete ouster of the plaintiffs' predecessors by the appellants. This position has not been considered by the learned District Judge. But from the fact that he has mentioned that he accepts the finding of the learned Subordinate Judge as correct, I will take it that he was also of opinion that originally the appellants were co-sharers of Kalyan Singh. Now the question is whether, in spite of the expiry of the lease, and in spite of the fact that after 1870 the appellants or their ancestors never paid any rent or share in profit, it can be said that their possession continued as co-sharers. There can be only one inference possible in the circumstances, viz., they held adversely and not as co-sharers.
8. The appeal succeeds. The decree of the Court below is set aside and the decree of the Court of first instance is restored. The appellants will have their costs throughout and the costs in this Court will include Counsel's fees on the higher scale.