Lancelot Sanderson, C.J.
1. In this case I think the appeal should be allowed.
2. It appears that the plaintiff purchased the raiyati interest in the land from Bakshi Prodhania and Falu, Sikdar. The under-raiyat interest became vested by a series of transactions in a man called Abdul Ali, and through Abdul Ali the, under-raiyati interest became vested in defendant No. 1 in respect of plot No. 3, which is the only plot regarding which this appeal is made.
3. Now apparently Abdul Ali; purported to sell the raiyati interest, but it has been found by the Court below as a fact, which we must accept, that he had only the under-raiyati interest at the time of the sale. Therefore, as between him and the defendant No. 1, he was able to pass nothing more than the under-raiyati interest. The defendant No. 1 went into possession in the year 1893 in consequence of this purchase from Abdul Ali. Therefore, it must be taken for the purpose of this appeal that he entered upon the land in the capacity of an under-raiyat. The suit has been dismissed in respect of this plot, on the ground that the defendant No. 1 has thus been in possession of this plot from 1893 down to the institution of the suit, that is, more than twelve years. In my judgment in the circumstances of this case that is not a. good ground for the dismissal of the suit.
4. This matter may be looked at perhaps from two points of view. If it is looked at from the point of view of the English Law, the defendant No. 1 being the under-raiyat of the plaintiff who had the raiyati interest, the defendant No. 1 could not dispute his landlord's title without first going out of occupation. We had occasion the other day to deal with this matter and I referred to the case of Doe d. Joseph Manton v. Austin (1832) Bing. 41 : 2 M. & Scott. 107 : 1 L.J. C.P. 152 : 131 E.R. 529 where Chief Justice Tindal said: 'A tenant shall not contest his landlord's titles on the contrary, it is his duty to defend it,. If he objects to such title let him go out of possession.' Looked at from this point of view of the English law if the defendant, the under-raiyat, wished to dispute the title of the raiyat, the plaintiff, he ought to have gone out of possession, and thereby made it clear that he intended to dispute the raiyat's title.
5. On the other hand, it may be looked at from another point of view, namely, that laid down by Mr. Justice Brett in the case of Madan Mohan Gossain v. Kumar Rameswar Malia 7 C.L.J. 615. The head-note correctly, I think, represents the passage in the judgment to which I desire to refer and is as follows: 'Where a lessee enters into possession under a lease, he cannot acquire any title by adverse possession against his lessor pending the term of the lease unless lie distinctly asserts such a title to his knowledge and gives him notice that he asserted such a title.' If we look at this matter from that point of view, there is no evidence whatever that the defendant, either when he went into possession of plot No. 3 or after he went into possession of that plot, at any time asserted title so that it came to the landlord's knowledge that he, the defendant, was occupying; the land not as under-raiyat having obtained the interest of Abdul Ali, but as owner asserting his title adversely to the plaintiff in this case. Whether we look at it from the point of view of the, English Law or whether we look at it from the point of view of the law laid down in the case in this Court, to which I have referred, there is nothing to show that the occupancy of the defendant had ceased as that of a tenant and became that of an adverse possessor. Perhaps, it is only right to mention that failure to pay rent to the lessor by the lessee does not alone operate to create in favour of the lessee a title by adverse possession. It is true that no rent has been paid by the defendant to the plaintiff; but from the point of view of the law laid down in the above-mentioned case it will not operate as a defence for defendant No. 1.
6. For these reasons I think that the learned Judge was wrong in dismissing the suit of the plaintiff as regards plot No. 3 altogether. In my judgment, the plaintiff is entitled to a declaration that his position is that of a raiyat and the position of the defendant No. 1 is that of an under-raiyat under him and that the plaintiff is entitled to rent on, account of plot No. 3 from defendant No. 1.
7. The plaintiff is not entitled in this suit to a decree for possession, because he has not taken the steps which are necessary for him to take as raiyat to eject the under-raiyat.
8. For these reasons I think the decree of the first Appellate Court should be set aside and a decree made in favour of the plaintiff in the terms I have indicated.
9. The plaintiff will have the, costs of this appeal and the appeal before Mr. Justice Walmsley, but each party will bear their own costs in the two lower Courts.
10. Of course this judgment is as regards plot No 3 only and we do not interfere with any of the decrees as regards the other plots
Asutosh Mookerjee, J.
11. I agree.