1. This second appeal arises out of a suit for rent under Section 77 of the Estates Land Act by the Zamindar of Bodo Khenidi. The suit proceeded on the footing that the land for which rent was claimed was S. No. 532 of Godogovindpur a village in the plaintiff's zamindari. The defendants are (1) a goldsmith of Godogovindpur, (2) a Brahmin describing himself as an inamdar of the neighbouring village on the west called Pattigovindpur which is outside plaintiff's zamindari, and (3) a Komati of Naupada, a village in the plaintiff's zamindari. The first defendant filed a written statement, which was adopted by the second and third defendants claiming that the field was an enfranchised pre-settlement inam land, that the first and third defendants had bought separate portions from the inamdars, and that the land formed part of Pattigovindpur village. It was also claimed that the defendants had held the land for long over the statutory period without paying rent to the zamindar.
[After an elaborate discussion of the facts on evidence His Lordship proceeded.]
2. On appeal three points are urged on behalf of the respondents. First, that the suit land although situated inside the limits of Godogovindpur is nevertheless part of the whole inam village of Pattigovindpur. This as we have said was never pleaded, much less proved. We have already said more than once that the defendants claimed the suit land as lying within the village of Pattigovindpur. Then it is urged that the learned District Judge was right in his finding that the defendants had held the land adversely to the plaintiff for more than twelve years. We have already stated that there is no evidence at all of this. Lastly, it is urged that having been in possession for more than twelve years without paying rent, the defendants cannot now be called on to pay rent. And this is the only point of law which arises for decision in this appeal. We are not prepared to hold on the evidence that the defendants or their predecessors were in possession for over twelve years without paying rent, but assuming that they were, we think that they did not prevent the zamindar from levying rent when he came to know of the occupation of the land. Jeroyati or ryoti land is land in a zamindari in which the tenant has occupancy rights as defined in the Estates Land Act (I of 1908). A ryot who has been let into possession by the landholder or whose possession is recognised by the landholder is called an occupancy ryot and has large rights, the chief of which is that he cannot be evicted except on the ground that he has rendered his holding substantially unfit for agricultural purposes (see Section 151). A ryot who has not been let into possession by the landholder or who has not acquired the occupancy right by inheritance or transfer is a non-occupancy ryot. And he too has valuable rights and privileges under the Act. He may make improvements on the land without the landholder's consent (Section 14). He is not liable to pay rent for the land in excess of the rent fixed on the land or if no rent is fixed then a fair and equitable rent decided by the Collector (Section 45). And finally he can compel the landholder to grant him a permanent right of occupancy on tendering as premium a sum equal to two and a half times the rent of the land and the landholder is debarred for twenty years thereafter from enhancing that rent (Section 46). It is only when the provisions of Sections 45 and 46 have not been complied with that the landholder has the right to evict a non-occupancy ryot by a suit in a Civil Court (Section 163). On the other hand the non-occupancy ryot must of course pay rent (Section 45) and the rent can be recovered from him by suit in the Collector's Court (Section 77) and he can be evicted if he fails to discharge a decree for rent within a certain time, by suit filed in the Collector's Court (Section 153). But there is nothing in the Act which enables the non-occupancy ryot to prescribe for title to hold the land free of rent. And having regard to the conditions prevailing in zamindaries it would be surprising if there were any such provision. For in the majority of cases these estates are not surveyed. There is no demarcation of the holdings of the various ryots on the ground. There is no survey map by reference to which the holdings can be located. The recorded area of the land in the landholder's books is not based on exact measurements nor calculated with mathematical precision. It is easy therefore for a ryot to encroach gradually on unoccupied land adjacent to his holding and the encroachment may pass unnoticed for years. It would be a vexatious burden on the landholder if he were debarred from claiming rent on such encroachments as soon as he detected them.
3. It was somewhat faintly argued by learned Counsel for the defendants that if the defendants believed that they had the full ownership of the land - which in itself is a large assumption - and enjoyed it as such for over the statutory period, that in itself is sufficient to give them a title by prescription against the zamindar. We cannot concur in this argument. Adverse possession in order to become a basis of title must be brought to the notice of the true owner. Here, if, for the sake of argument, we grant that the defendants actually were on the land for over twelve years before suit - and the evidence of that is not conclusive either - such occupation did not affect the landholder with notice of their claim to be proprietors. For In a zamindari, as it is hardly necessary to point out, the maj0r portion of the land is in the occupation of persons who have the right to occupy it but not the whole proprietary right; who are, in other words, occupancy ryots or persons who hold the land in the hope of being occupancy ryots. If such persons wish to prescribe for a higher right in the land they must give open and unequivocal notice of their intention to the landholder. Nor does the mere non-payment of rent for a number of years amount to such notice since, as we have pointed out, when a land has been encroached upon gradually and secretly the very fact of its being occupied may very well escape notice.
4. In the result we differ from the lower Court. We find that defendants did not prescribe for title as proprietors for the simple reason that they never asserted any such title. And we find that by non-payment of rent for more than twelve years - assuming that such is the fact - they did not prescribe for the right to enjoy the land for ever without paying rent. We allow this appeal and set aside the decrees of the Courts below. The appellant will have his costs of this appeal and of the suit throughout.