D. Falshaw, J.
1. This is 9 second appeal by a plaintiff Roop Narain whose suit for a declaration that he is the owner of the house in suit by virtue of adverse possession for about 50 years has failed in the trial Court and in the lower appellate Court.
2. It Is not in dispute that the plaintiff has been In possession of the property in suit since at least 193Z. The contesting defendant Hanuman Parshad alleged that he had let the property in suit in 1932 to the other defendant, Bishan Chand, who is related to Roop Narain and that the plaintiff had been occupying the house with the permission of Bishan Chand. In 1941 Hanuman Parshad brought a suit in the Small Cause Court for the recovery of Rs. 180/- as arrears of rent at Rs. 10/- p.m. against both Bishan Chand and Roop Narain, the latter being impleaded as a party on the ground that he had been let into possession of the property by the tenant.
Both the defendants contested the suit, Bishan Chand denying the existence of the relationship of landlord and tenant between him and Hanuman Parshad, while Roop Narain claimed that he had been in adverse possession of the property for a long time, and that neither Hanuman Parshad nor Bishan Chand had anything to do with the house. The suit was dismissed on the 7th of May, 1942, but Hanuman Parshad filed a revision petition in the High Court at Lahore which was decided on the 15th of May, 1943, by Monroe, J. The judgment is very brief and by it Hanuman Parshad was given a decree for Rs. 180/- against Bishan Chand, Roop Narain being held not to be liable to pay any rent as being an occupier of the premises by permission of Bishan Chand.
3. Thereafter, according to Hanuman Parshad, he continued realising the rent of the premises from Bishan Chand until finally in 1953 he filed a suit for ejectment on the ground of non-payment of rent and obtained a decree on the 15th of December, 1953. It was in execution of this decree that Hanuman Parshad sought to eject Roop Narain who set up his adverse title and then instituted the suit which has given rise to this appeal for a declaration of ownership on the basis of adverse possession, and also for an injunction restraining Hanuman Parshad from ejecting him in pursuance of his decree against Bishan Chand,
4. Although Hanuman Parshad raised the plea of res judicata on the basis of the judgment of Monroe, J. this plea was abandoned and the only question is whether the admitted possession of Roop Narain from 1932 onwards was adverse to Hanuman Parshad.
5. In deciding this point against the plaintiff the Courts below have relied on the proposition of law said to be laid down in Chandi v. Katyani Debi, AIR 1922 Cal 87, that the possession of a trespasser during the continuance of a lease does not become adverse against me lessor who is in possession by receipt of rent from his lessee, and so long such rent is not intercepted by a trespasser he cannot be said to have been dispossessed and consequently claim for abatement cannot be sustained, The decision In that case was affirmed by the Privy Council in Smt. Kalyayani Debi v. Udoy Kumar Das, AIR 1925 PC 97, though the question of adverse possession does not seem to be considered at all, the judgment being devoted to the question of abatement of rent. The same proposition is said to be followed in another decision of the Calcutta High Court in Hajra Sardara v. Kunja Behari Nag, 40 Ind Cas 271 : (AIR 1918 Cal 584), and Ramlakhan Pandey v. Digbijay Narain Singh, AIR 1948 Pat 274.
6. The learned counsel for the appellant has sought to distinguish these cases on the ground that in them there appears to have been no question of the lanolord being aware of the adverse claim to ownership being set up by the person who had obtained possession from the tenant, whereas in the present case there was a clear assertion of adverse title by Roop Narain in the suit in 1941, more than 12 years before the decree was obtained by Hanuman Parshad against Bishan Chand in December, 1953, under which dispossession of the plaintiff is sought. It has also been pointed out that the basis of the decision in Kalyayani Debi's case, AIR 1922 Cal 87, was to some extent based on the question whether the landlord Knew what was happening. This can be seen from the following passage on page 92:
'We may usefully recall here the following observations : The difficulties and dangers of Zamindars would be great, if they were bound to sue for declaration or right whenever they should discover any person other than the tenant In possession of any part of the land included in a putni tenure. They would have no means of Knowing, and no means, that I am aware of, of compelling either the tenant or the trespasser to Inform them whether the person in occupation was there with the consent of the holder of the tenure or an under-tenure derived from him or merely as a trespasser. To hold that a grantor is bound to sue immediately a trespass is committed upon his tenant and that he will be bound by limitation if he does not sue within 12 years from the time that the trespass was first committed would open such a door to fraud and collusion between tenants and trespassers that the zamindar or owner when he seeks to enforce the payment of his rent would often find trespassers, whom in consequence of limitation he could (sic) get rid of, In possession of the greater portion of the tenure, and who as soon as ha should have defeated the land owner by the plea of limitation, would probably share the spoil with the defaulting tenant.'
from this it would appear to follow that the proposition that the possession of a trespasser of land let out on lease does not become adverse as against the lessor until the termination of the lease is subject to the qualification that at no stage has the trespasser openly set out an adverse title to that of the owner. That this is the correct view derives support from the decision in Kishwar Nath Sahl Dev v. Kali Shankar Sahai, 10 Cal WN 343, another decision of the Division Bench of the Calcutta High Court in this case it has been held that where there is is a current lease and the tenant is dispossessed by a third party, time does not commence to run against the landlord until the expiration of the lease, but when the lease has expired and the tenant is holding over with the landlord's consent and the possession of such third party It adequate in continuity, in publicity and in extent so as to show that it is possession adverse to the landlord, the latter is not precluded from determining the tenancy and suing the trespasser in ejectment, and his right to me will be barred after 12 years of such possession.
7. In the case of a mortgage it was held by Tek Chand, J. in Hansa v. Ramlok, AIR 1928 Lah 147, that adverse possession against a mortgagee is generally ineffectual against the mortgagor, especially when it begins at a time when the mortgagee is in possession but when a trespasser takes possession of the mortgaged property and asserts a title which is hostile not only to the mortgagee but which also assails the title of the mortgagor and the mortgagor allows 12 years to elapse, the title of the trespasser will become indefeasible not only against the mortgagee but also against the mortgagor.
8. A similar view was taken by Sen and Rajadhyaksha, JJ. In Digamber Shridhar v. Ramratan Raghunath, AIR 1947 Bom 471, In that case a suit for possession was brought lay the purchaser of the mortgaged property in execution of enforcement of the mortgage and it was held that the suit was barred by limitation inasmuch as the defendant, who had ousted the possessory mortgagee, had been holding in his own right as owner for more than the statutory period to the knowledge of the person representing the mortgagor's interest.
9. There could certainly be no better instance of setting up an adverse title than that has taken place in the present case, and on the principles laid down above it would appear that the possession of the plaintiff has been adverse against the landlord since he filed his written statement in the Small Cause Court in 1941.
10. The Courts below have also relied on the fact that in 1942 the Punjab Urban Rent Restriction Act of 1941 was extended to Delhi and that this has been followed by a succession of Acts protecting the rights of tenants under which Hanuman Parshad could not apply for ejectment as long as ha went on receiving the rent from Bishan Chand.
So far as I am aware, however, it has always been a ground on which ejectment could be sought even under this protective legislation that a tenant has sublet or part-ed with possession of the premises in suit and there was no bar at all to the filing of a suit on these grounds by Hanuman Parshad at any time from 1942 onwards. In the circumstances I am of the opinion that the plaintiff succeeded in establishing his case and that whatever the position may have been before 1941 his possession of the property In suit has been adverse as against Hanuman Parshad at least since 1941 and for more than 12 years before the present suit was filed. I accordingly accept the appeal and decree the plaintiffs suit with costs through out.