C.M. Lodha, J.
1. The suit out of which this second appeal by the plaintiffs arises, was instituted on 18-8-1960 in the Court of Munsiff, Jalore for possession of a plot of land, situated in the town of Jalore.
2. The plaintiffs' case is that the plaintiff No. 1. Jagjivansingh and Mangilal father of plaintiffs Nos. 2 to 5 purchased this land from one Baghsinsh by a registered sale deed Ex. 1 dated 29-10-1958 for Rs. 400/-. This plot of land, according to the plaintiffs, originally belonged to the Government which had granted a 'patta' of the same to Baghsingh on 17-9-1955 (Ex. 2). The plaintiffs' case is that they got possession of the land from Baghsingh on the day they purchased the same but they permitted the defendant Ahmed Bux to occupy it on their behalf. It was stated that when the plaintiffs wanted to set back possession of the land, the defendant Ahmed Bux evaded to hand over the possession of the land to the plaintiffs, and ultimately when the plaintiffs served a notice on Ahmed Bux, the latter in his reply to the notice denied the plaintiffs' title to the land and asserted his own. It was, therefore, prayed that a decree for possession of the land may be granted in favour of the plaintiffs.
3. The defendants Ahmed Bux and his sons Mohammed and Jabqor Mohammad denied the plaintiffs' claim and pleaded inter alia that they had acquired title to the land by adverse possession. Their defence was that the land belonged to one Phool Shah from whom they had purchased it for Rs. 175/- on 17-6-1954 (vide receipt Ex. A).
4. The learned Munsiff by his judgment dated 23-10-1962 dismissed the plaintiffs' suit. The plaintiffs filed appeal which was dismissed by the learned Senior Civil and Additional Sessions Judge, Jalore by his judgment dated 26-3-1964. Consequently the plaintiffs have come in second appeal to this Court.
5. Learned counsel for the appellants has urged that the Courts below have committed an error of law in holding that the defendants have perfected their title to the land by adverse possession. It is submitted that according to the finding arrived at by the Courts below, Phool Shah from whom the defendants allege to have derived their right to the land got possession over it 2 or 3 years before 1947 when Phool Shah is alleged to have gone to Pakistan. The argument is that Baghsingh, the predecessor in title of the plaintiffs got the 'patta' of the land in question from the Government in 1955 and by that time the defendants' possession even, according to the finding arrived at by the Courts below had been only for about 11 years. It is urged that no adverse possession could be effective against the Government unless the defendants had completed it by being in possession for 60 years or more. The suit was instituted in 1960 and consequently it is argued that as against the plaintiffs and their predecessor in title Baghsingh, the defendants had remained in possession of the land in question only for 5 years or so, and the period of 11 years prior to the grant of the 'patta' by the Government to Baghsingh could not be tagged to this period of 5 years so as to complete the defendants' adverse possession over the land for more than 12 years.
6. It may be observed that this aspect of the case was not put before the lower Courts. However, since the learned counsel for the appellants has not challenged the finding of fact arrived at by the lower Courts in this connection and seeks to argue the question of limitation on the basis of that finding. I have allowed him to argue the point.
7. It may be pointed out that the period of limitation for a suit by, or on behalf of the Government is 60 years under Article 149 of the Limitation Act No. IX of 1908 but it is well settled that this Article does not apply to a suit by a person deriving title from the Government. In this connection reference may be made to Jagadindra Nath Roy v. Hemanta Kumari Debi, (1904) ILR 32 Cal 129 (PC). Annada Mohan Roy Chowdhury v. Kina Das, AIR 1924 Cal 394 and Venkata Suryanarayana v. Venku Naidu, AIR 1926 Mad 1155.
8. In (1904) ILR 32 Cal 129 (PC), it was observed by their Lordships of the Privy Council at page 138 :
'The defence of limitation was based upon the case that the plaintiff had been out of possession for more than twelve years, and such is the fact, as found in both Courts. To this it was answered that the period of limitation was sixty years, as if the suit had been brought by the Secretary of State. This view found favour with the first Court, but was rejected by the High Court. It is enough to that on this point their Lordships entirely concur with the learned Judges of the latter Court.'
9. In AIR 1924 Cal 394, where a purchaser of land from Government sued to recover possession within 60 years, but more than 30 years from the commencement of adverse possession and within 12 years of the purchase, it was held that the suit was barred under Article 144 which prescribed a period of 12 years. It was observed that if the suit had been instituted by the Government it would not have become barred for 60 years under Article 149.
10. Again in AIR 1926 Mad 1155. where a person bad been in adverse possession for 12 years of lands belonging to Government and the lands were granted by the Government to a third person, it was held that the grantee can successfully be met with a plea of adverse possession, although it would have been open to the Government to resume the lands, 60 years adverse possession not having been completed as against the Government, It was further observed that the question whether 12 years possession as against the grantee was completed before the grant or afterwards is immaterial.
11. Learned counsel for the appellants, however, invited my attention to Koylashbashiny Dossee v. Gocoolmoni Dossee, (1882) ILR 8 Cal 230, wherein it was observed that 'in the case of Government or any person claiming under Government, Article 149 of the Limitation Act provides the period of sixty years; and it therefore follows that the Government or an auction-purchaser claiming under the Government must sue within sixty years after the cause of action arose to resume Lakherai land, even although held on a grant alleged to have been made after 1790.' With utmost respect I may state that in that case there is no discussion of the law on the point and it appears to have been taken for grantedthat any person claiming under the Government is entitled to the benefit of the period of limitation of 60 years prescribed under Article 149 of the Limitation Act, 1908.
12. As already pointed out above, the Calcutta High Court in AIR 1924 Cal 394, has taken a contrary view even though the earlier authority of that Court. (1882) ILR 8 Cal 230, does not appear to have been brought to the notice of the learned Judges, who decided the later case. Moreover, the view taken in the later case of the Calcutta High Court and so also in the Madras case, AIR 1926 Mad 1155, is in accord with the view taken by their Lordships of the Privy Council in (1904) ILR 32 Cal 129 (PC). Consequently. I hold that the plaintiffs are not entitled to the benefit of 60 years period of limitation prescribed under Article 149 of the Act of 1908 and that the suit is barred under Article 144 of the Limitation Act in view of the fact that the defendants had completed their adverse possession extending over 12 years by the time the plaintiffs had instituted the present suit.
13. The only other point argued by the learned counsel for the appellants is that the defendants' possession over the land in question was precarious and not adverse. Suffice it to say that no such objection was taken by the plaintiffs in any of the Courts below. Moreover, the learned first appellate Court has come to the conclusion on the basis of the evidence on record that the hut standing on the land in question was not constructed by Bhaghsingh and that Phool Shah and the defendants had been in continuous possession of the land, since 2 or 3 years before 1947 A. D. The theory of permissive occupation of the defendant Ahmed Bux at the instance of the plaintiffs has also been rightly rejected by the Courts below. In this view of the matter the finding of the Court below that the defendant had been in adverse possession of the land in dispute for more than 12 years must be accepted and does not call for any interference.
14. The result is that I do not see any force in this appeal and hereby dismiss it. But in the circumstances of the case I leave the parties to bear their own costs.