1. These appeals arise out of suits for khas possession of the land in dispute in each case which had been allotted on a partition of an estate effected by the Collector as between the plaintiffs and the defendants. The partition was made on a rayatwari basis, but the lands were in the exclusive possession of the defendants who were also co-sharers of the estate in which the lands in dispute are situate.
2. The defendants pleaded inter alia that the plaintiffs were not entitled to get khas possession of the lands as the defendants had a chak right, or a tenancy right by adverse possession for more than 12 years.
3. The Court of first instance decreed the suits on the grounds that the defendants had failed to prove chack right and as co-sharers did not acquire any right by adverse possession. On appeal the learned District Judge reversed that decision and the plaintiffs have preferred these appeals.
4. The history of the case leading up to the suits is a long one and has been exhaustively dealt with by the Court of appeal below. It appears that mouza Kalaipar, where the lands are situated, formed part of 2 estates 115 and 116, and at the time of the Permanent Settlement were held by two Mahomedans. There were quarrels between their descendants in consequence of which the estates were attached under Regulation V of 1812 and a Kroke Sarbarakar or receiver was appointed. Sometime after, they settled the dispute and filed solenamah in the Collectorate showing that they made an amicable partition. The receiver was thereupon discharged in 1826. The estate then passed to a number of Hindu proprietors; there were disputes as to possession among them, and the property was again attached, and a receiver appointed under the Regulation. The receiver held a measurement of the lands of the villages, and the chitta Exhibit 32-A shows that 30 puras (about 100 bighas) were measured in mauzah Kalaipar in the name of Bhrigu Ram Chakladar, the grandfather of the Chakladar defendants as his khamar and Bhadrasan lands, and some other khamar lands in the possession of other proprietors. The present suit relates to about 1000 bighas of land. Exhibit 32-A however appears to be a measurement of the lands of only one of the sahams which belonged to one Abdul Basid. The chitta goes against the chak or tenancy right of the defendants, as it describes the land as the khamar and Bhadrasan land of Bhrigu Ram. Two years later, however the receiver realised Rs. 84 and odd from Bhrigu Ram by distress under Regulation VII of 1799 which related to recovery of rent with the power of distraint. Bhrigu Ram brought a suit in the Civil Court for the refund of the amount which, he said, was realised in excess of the amount due from him by illegal distraint. In that suit Bhrigu Ram claimed chack patni right to the lands, and some of the proprietors denied that he had such right in the lands.
5. suit was ultimately decreed on the ground that the distraint was bad by reason of non-service of the usual notices, but the question of the chack right or the extent thereof was left undecided in the final stage of the suit.
6. The learned Judge points out that the receiver having taken proceedings under Regulation VII of 1799 admitted some sort of tenancy right of Bhrigu inspite of his own chitta of 1840.
7. In 1849 one Sib Nath who had become the purchaser of a share of mouzah Shilashi (of which Kalaipar formed a part) and who had obtained possession of his share of some lands, brought a suit for possession of his share in the remaining lands, viz., 1000 puras. All the proprietors of the estate were made party defendants to that suit. The estate then was in the hands of the receiver, but possession was with Bhrigu Ram and some others. Bhrigu Ram in his written statement filed on 31st July, 1850 claimed to be in possession of the lands by chak right under four sanads, from before he acquired interest in the estate. It is not disputed that the boundaries of land in that suit cover the Jands of the present suit. Sib Nath's suit was ultimately dismissed for want of prosecution, and although an issue was raised regarding the chak right, no decision was come to on the point in the judgment dated the 28th April, 1854. The judgment, however, is important as it contains an open assertion in the presence of all the proprietor of the estate. Then came the thak proceedings in 1854 and Bhrigu Ram's widow was recorded as being in possession of the major portion of the lands.
8. In 1860 Kali Mohan Bal the predecessor of the plaintiffs applied for partition of Estate No. 115 and the chakladars at once set up their chak rights, and asked that their chak lands might be kept under all the landlords, 84 puras were as a matter of fact recorded as chak without any objection by any of the proprietors, and a saham of the same was actually made, but in 1865 the Board of Revenue vetoed the partition, as there was no provision in the Regulation of 1814 for the partition of ejmali estates. Though the partition fell through, it is clear that the chak right was asserted in the presence of all the parties and was recorded in a portion without any protest from anybody.
9. In 1866, the property was released from attachment and the receiver was discharged. In 1874 Kali Mohan Bal brought two suits for joint possession of lands of some mouzahs other than Kalaipar (against the chakladars, and the other proprietors were made parties to the suit) denying the previous partition made by the Mahomedan proprietors. They ultimately succeeded in the High Court (in 1877), the previous partition being negatived.
10. In 1878, Kali Mohan Bal brought a suit for possession of certain lands including the present disputed lands on the allegation that the chakladars were holding the lands wrongfully under the assertion of chak right. Simultaneously with that suit, ten other suits were brought by 10 other co-sharers including Jyotirmoyi the mother of the chakladar defendants for declaration of their shares and for partition of Estate No. 115. In her suit for partition Jyotirmoyi mentioned her chak right but did not bring it under partition, as it was a subordinate interest. In the suit by the Bals, Jyotirmoyi set up her chak right and gave the boundaries of the lands in her possession as were given in Sib Nath's suit. The area of the village was stated to be 250 puras, the whole of which the plaintiffs, the Bals, said were in the possession of the chakladars under the assertion of chak rights and they sued for possession of their share. An issue as to the chak right was raised but was not decided. It was held that Kali Mohan Bal could not get possession of specific lands until partition which was the subject-matter of the ten suits brought by the other proprietors, but in the partition suits also there was no decision as to the chak rights. The suits were disposed of with a declaration of the shares with the right to have the estate partitioned by the Collector.
11. After the decision of the suits, the Collector was moved and a partition of the estate was started in 1879. The Batwara Deputy Collector submitted a report negativing the chak rights. The Batwara case, however, was struck off in August 1887 under Section 116 of Act VIII of 1876. After that, partition was again started in September, 1889 upon the application of Uma Sundari, one of the proprietors. There was another report by the Deputy Collector negativing the claim of the chakladars which was approved by the Collector but the Commissioner left the matter of chak rights open and undecided. He directed that the claim might be recorded and the partition effected, treating the lands as ordinary raiyati lands. Partition was proceeded with and brought to a close by delivery of possession, in February 1903. The present suits were instituted on the 10th February, 1914.
12. It appears that prior to this the lands of Estate No. 116 were divided from the lands of 115 and the Kalaipar lands were divided half and half between the two estates. One of the proprietors brought a suit for partition of the lands of Estate No. 116 making all the co-sharers of Estates 115 and 116 parties. The chakladar defendants claimed a chak right which was upheld by the Court. The chak right, therefore, was established in the presence of all the parties. The suit, as stated above, related only to the lands of 116, but the chak right claimed was under the same grants for lands common to both the estates.
13. The learned District Judge in the present suit came to the conclusion that in the absence of the sanads, the chak right set up by the defendants was not proved, but he found that having regard to the long possession on assertion of chak or tenancy right, there was a presumption of lost grant or that the defendants acquired a chak or tenancy right by adverse possession. The main contention of the appellants is that there could be no adverse possession as the chakladars were co-sharers and that time commenced to run only from February, 1903 when possession was delivered by the Collector after termination of the partition proceedings.
14. The first question for consideration is, when did the possession of Bhrigu Bam Chakladar commence, whether before or after he became a co-owner of the estate. The Court below on that point observes:
'It is clear that Bhrigu was in possession from before 1243 at least and that he could have no possession as proprietor before 1243. The receiver came in 1244 and went away in 1273. So Bhrigu could exercise no acts of possession as a proprietor between 1244 and 1273. He could not go into the village then, and make khamar of practically the whole village when the receiver was in possession of the estate. It is thus very clear that Bhrigu was in possession from before the attachment and that he was in such possession not as a proprietor.' According to the learned District Judge the possession of Bhrigu commenced before the second attachment in 1837. It is contended on behalf of the appellants that this finding is not supported by any evidence. There are however materials on the record upon which the Court could come to that finding, and even if there was any misconstruction of the evidence we cannot go behind the finding.
15. It is also found that Bhrigu held the lands in the assertion to a chak right. That was adverse to the proprietors. In the chitta prepared by the receiver in 1840, the land in Bhrigu's possession was recorded as khamar but in 1842 the Receiver realised rent from him by distress under Regulation VII of 1799, which was followed by the suit for refund for a portion of the money realised as stated above. The receiver did not realise any more rent from him and Bhrigu continued to hold possession on the assertion of a chak right, and having regard to the fact found by the Court below, viz., that Bhrigu could exercise no possession as a proprietor between 1837 and 1866, it must beheld that he was in possession throughout in the assertion of a tenancy right. Such possession was hostile to the proprietors inasmuch as they could not get khas possession of the lands to which they were otherwise entitled. It is contended however first, that the assertion of a hostile title was only with regard to 30 puras of land secondly, that as soon as Bhrigu became a co-owner his possession ceased to be adverse, as such possession was referable to his possession as co-owner, and thirdly, that so long as the receiver was in possession, the other co-owners could note take any steps for obtaining khas possession.
16. With regard to the first contention it has already been pointed out that the chita Exhibit 29 which recorded 30 puras in the possession of Bhrigu was only a portion of the chitta, and related to one saham only (that of Basid). Then it is not disputed that in the suit brought by Sibnath (one of the co-owners) for possession of his share of the lands in 1849, Bhrigu in his written statement, filed on the 31st July, 1850, set up his chak right to the whole of the lands now in suit and his possession of the same from before his acquisition of any interest in the zemindari.
17. With regard to the second ground it is no doubt true that the possession of a co-owner is not ordinarily adverse to the other co-owners, and Bhrigu's possession after he became a co-owner would not have been adverse, were it not for the fact that he continued to hold the land after he became a co-owner in the assertion of the same hostile title as he had set up before he became a co-owner.
18. Reference was made to Hardit Singh v. Gurmukh Singh A.I.R. 1918 P.C. 1 where the Judicial Committee held that uninterrupted sole possession by a member of joint Hindu family property, without more, must be referred to the lawful title possessed by the joint holder to the use of the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. That principle cannot be, and is not disputed by the respondents. But their Lordships were dealing with a case where there was merely sole possession by one member 'without more,' and which could not be regarded as an assertion of an adverse claim against the others. Their Lordships did not lay down that a co-owner cannot assert a hostile title against the other co-owners. Nor does the case of Balaram v. Seama Charan (1920) 33 Cal. L.J. lay down any such proposition.
19. The possession of a person who enters into possession originally as a co-owner can be adverse if there, be an ouster of the other co-owners. If so the possession of a person who originally entered not as a co-owner, but subsequently became a proprietor and continued to assert hostile title and exercise possession to the exclusion of the other co-owners cannot be said to have ceased to be adverse. The other proprietors were entitled to khas possession of the lands but they Were kept out of Khas possession by the chakladar. Of course the mere fact that the chakladar was; in sole possession of the lands by itself would not constitute his possession adverse. But as stated above he was in khas possession on the assertion of a chak right both before and after he became a co-owner to the exclusion of the other proprietors. The receiver as well as all the co-owners were parties to the suit for possession brought by Sibh Nath in 1849, and in which the chakladar distinctly asserted his chak right to the whole of the land in dispute in the present suit. The assertion of a hostile title was therefore made in the presence of all the co-owners and the receiver. Uma Sundari the predecessor-in-title of the Bal plaintiffs was a defendant in that suit, but she did not appear. Another proprietor Mr. Wise in his written statement said that the chakladar had been in possession under an Act IV decree and that he was contemplating a suit against him. Sibh Nath's suit was ultimately dismissed for want of prosecution in 1854. The suit brought by the successor's in interest, of Mr. Wise long after, was dismissed on the ground of limitation. So that not only was the chakladar in exclusive possession of the lands upon an assertion of a hostile title both before and after he became a proprietor, but suits were actually brought by some of the co-owners and notwithstanding the suits, the chakladar retained possession to the exclusion of all the co-owners. This amounted to ouster so far as khas possession was concerned.
20. The third contention is that the proprietors could not sue for possession so long as the estate was in the hands of the receiver (1837 to 1866), and time cannot run against a person so long as he cannot sue. It is not clear that the appointment of a receiver (Manager) under Regulation V of 1812 to manage the estate 'that is, to collect the rents and discharge the public revenue and provide for the cultivation and future improvement of the estate' (see Section 26), took away the right of the proprietors to sue for declaration of their title and for recovery of possession which when recovered would vest in the receiver. In any case they could move the Court to compel the receiver to sue. However that may be, either the receiver, or the proprietors, or both jointly, could take steps to recover khas possession from the chakladar. The proprietor's right to sue for khas possession against Bhrigu Ram accrued even before the second attachment in 1837. The mere appointment of a receiver therefore could not prevent the statute of limitation running, which had commenced from before the attachment. As stated above, it is found by the Court below that the chakladar came into possession before the appointment of the receiver. The receiver was kept out of (khas) possession by the chakladar. It is true that Bhrigu by purchasing a share in the estate became bound by the proceedings in which the receiver was appointed and was not a stranger to the proceedings, but as a matter of fact he did keep the receiver out of khas possession to which the latter was entitled, and as a matter of fact one of the proprietors Sib Nath did bring a suit for possession of his shares in 1849, which was dismissed for want of prosecution. The suit brought by the successors-in-interest of Mr. Wise, another proprietor was also dismissed. It cannot be said therefore that the proprietors were unable to take any steps. It is contended that a suit could not be maintained for merely negativing an assertion and reference is made to Rajah Nilmony v. Kalle Churn Bhuttacharjee (1874) 2 I.A. 83 but there the person who sought the declaration was in receipt of the rents and profits. Here the proprietors could not rely upon the possession of the receiver because the receiver was not in possession.
21. But assuming that the possession of the chakladar was not adverse so long as the estate was in the hands of the receiver, there can be no doubt that the proprietors could sue in 1867 when the receiver was discharged. It is true that a few days before the expiry of 12 years from 1867, i.e., in 1878 suits for partition were instituted, but those suits had no reference to the chak right claimed by the chakladars. They had reference only to the proprietary interest. The partition proceedings ended in 1903 but the question relating to the subordinate interest having been left open and undecided, did not and could not affect such interest, and the partition proceedings consequently did not prevent limitation running so far as such interest was concerned. The exclusion of the period during which the partition proceedings were pending would not avail the plaintiff, because the present suits were instituted about 11 years after the termination of the partition proceedings in 1903.
22. The plaintiffs ought to have got the question, whether the chakladars had any subordinate interest, settled, and the mere fact that suits for partition relating to the proprietary interest did not come to an end until 1903, therefore could not affect the question of adverse possession of the chakladars with respect to the subordinate interest. The chakladars were in possession with an assertion of title to the entire land in suit within defined boundaries, to the exclusion of the other proprietors, such; possession must therefore be held to extend? to waste or beel lands also, but the commissioner's map does not show any beel or jheel lands within the disputed lands. The possession of the chakladars for a period exceeding 80 years held on an assertion of a hostile title to the exclusion of the other proprietors both before and after Bhrigu entered upon the lands and maintained notwithstanding suits for possession brought against them by other proprietors, constitutes adverse possession. We are accordingly of opinion that the learned District Judge was right in holding that the claim for khas possession was barred by limitation.
23. In this view it is unnecessary to consider the case of Kiran Babu and the Ghose defendants. Their possession dates from 1881 and they were not proprietors of Kalaipur. It is proved that they have been in exclusive and adverse possession of the land purchased by them ever since 1881, and the claim for khas possession as against them is barred by limitation, even if the suit be held to be in time against the chakladar defendants. We think the principle of lis pendens does not apply because the proceedings in the Civil Court ended an 1889 and the proceedings before the Collector taken from time to time (and not continuous) cannot be held to be in continuation of the partition suit in the Civil Court.
24. It was finally contended that the decree in a partition suit his the effect of a conveyance by the co-sharers in favour of one another in respect of the lands allotted to each. But in the first place, as already stated, the partition was only in respect of the proprietary interest, and in the next ;place the subordinate right set up by the chakladars in the partition proceedings was expressly left open and undecided, although, therefore the partition was directed to take place on the footing that the lands were raiyati, it must be taken that the partition was subject to any adjudication of the tenancy right which was left open and undecided in the partition proceedings. We are accordingly of opinion that the principle contended for, cannot apply in the present case. On the whole we agree with the Court below and the appeals must be dismissed with costs. (Costs in each case will be divided thus : 2/3rds to the chakladar defendant and 1/6th each to Kiran Babu and Ghose defendants).
25. The cross-objections were not pressed and are also dismissed. In respect of cross-objections in S.A. Nos. 1959, 1960, 1981, 1984, 1985, and 2146 of 1918, the respondent No. 1 Bipin Behary Chakladar will pay costs to the appellants.