1. A short history which gives rise to this appeal is this. In the year 1871, two brothers Laiq Singh and Thakur Singh sold their share in a zamindari property to Durga Singh, the predecessor-in-title of the plaintiff-respondent before me. Having regard to the fact that this sale left the vendors completely destitute, Durga Singh executed an agreement by which he allowed to each of the vendors certain lands, to be held by them rent free, till they made any attempt to transfer the same by mortgage or sale. Thakur Singh died and was succeeded by his wife, Mula Kuer. Mula Kuer is now dead and the present appellant Daulat Singh is in occupation of the land as a reversioner to Thakur Singh. The present suit was instituted on the allegation that the muaff held by Thakur Singh and after him by Mula Kuer, had been resumed by proceedings taken in Court in the year 1894 (judgment dated 18th December 1894). But since then, the defendant and his predecessor have been in possession 'without consent and without any contract and without payment of rent.' The plaintiff sued to eject the defendant as a mere non-occupancy tenant.
2. The suit was resisted, inter alia, on the ground that it was barred by 12 years' rule of limitation. It is said, that the possession of Mt. Mula Kuer, since the order for resumption was passed, on 18th December 1894, became adverse to the landlord and since the lapse of 12 years from the date, she and after her the defendant became the proprietor of the land. The suit failed in the Court of first instance but has been decreed by the learned District Judge on appeal. In this Court it is contended that the plea of limitation was a valid plea and ought to have been given effect to by the learned District Judge.
3. Act 12 of 1881 by Section 30 provided for a resumption of rent free land. The procedure was by an application. Section 30 gave two reliefs to the applicant. One was, 'to resume such grants' and the second was, to assess rent on the land.' The copy of the decree, which is on the record as 55-A, shows that the former relief, namely resumption of the land was asked for and was granted. Now the question is; what is the effect of this decree?
4. It has been contended by the learned Counsel for the respondent that the effect of the decree was the grant of a pure declaration namely, the defendant had ceased to hold the land rent free. In other words, the declaration given was that the defendant was not any longer entitled to hold the land under the terms of the agreement. It has been contended by the learned Counsel that the Act of 1881 did not provide for execution of a decree for resumption. The only provision made for execution was as to the ejectment of a tenant (see Chapter 7, Act 12 of 1881). In my opinion the result is the same whether we read the order passed under Section 30, Act 12 of 1881 as a declaratory order or as an order for ejectment. Ordinarily speaking, the word 'resumption' implies, a taking back, re=again, and sumere-to take. Murray, in his English Dictionary gives as one of the meanings of the word, 'to re-occupy.' The fact that two reliefs are provided for, namely determination of rent and resumption, goes to show that the applicant could be granted a relief by way of possession. It may be that the Act 12 of 1881 did not provide any clear procedure for execution of an order like that. In that case, the inherent powers of the Court to execute its own order would have to be invoked. But, as I have said, for the purposes of this case, it is immaterial whether the order was of a declaratory nature or was capable of execution. If it was, in essence, a declaration, it put an end to the title of the defendant to hold on as a rent free grantee. From the moment the order was passed, the applicant, at whose instance the order was made, became entitled to take possession, unless both the parties, namely the applicant and the former grantee agreed that the latter should hold the land on a rent agreeable to both the parties. It is wrong to say that from the date of the passing of the order the position of the opposite party became that of a tenant. In this very case, in para. 3 of the plaint, the respondent says the defendant was in possession of the land
without any contract, without consent and without payment of rent.
5. In other words, the position of the former grantee was that of a trespasser.
6. Again, if the order was capable of execution, the order not having been executed, according to law, became valueless and no fresh suit could be maintained for recovery of possession. It was contended by the learned Counsel for the respondent that within 12 years of the order (1894),the Tenancy Act of 1901 came into force and under it, by virtue of Section 34, the landlord became entitled to sue the defendant as a trespasser, for ejectment, as if the latter were a tenant. Assuming all that, Section 34 is a rule of procedure and does not lay down any rule of limitation. Surely, a man who has been adversely in possession for more than 12 years, cannot be ejected by the landlord, who has lost his title by the adverse possession, under Section 34, Tenancy Act of 1901.
7. In my opinion, the learned Judge of the lower appellate Court was wrong in holding that the suit was not time barred. I hold that the present suit is not maintainable on account of the lapse of time. The appellant and his predecessor-in-title have together held the land for more than 12 years adversely to the plaintiff and his predecessor-in-title. The appeal is allowed and the respondent's suit is dismissed. The appellant will have his costs throughout.