Lancelot Sanderson, C.J.
1. In this case the appeal, in my judgment, mast be dismissed, for the following reasons: it is necessary to state the facts shortly:--The action was brought by the plaintiffs for the purpose of obtaining a declaration that they were entitled to the tank in question, and that a writ of possession should be granted to them. On the other hand, the defendant No. 1 set up three points: First, that the evidence adduced by the plaintiffs about the possession of the tank should not be believed; secondly, that, even if believed, the possession was not of such a character as to show that it was adverse to the defendant No. 1; and 'thirdly, that, before the defendant No. 1 acquired the patni tenure of Lot Baisgram the possession of the plaintiffs and their lessors was not adverse to him as Mauza Kamalpur was held by patnidars under the Maharaja of Burdwan. It appears that there were two patnidars, whose patnis were adjoining, the Hazrahs on the one hand and Gisbourne & Co. on the other, both holding under the same Maharaja, the defendant No. 1., It has been found, and we cannot go behind that finding of fact, that the land in question was originally included in the Gisbourne & Co.'s patni, but that the Hazrahs had annexed the land upon' which the tank was situated and they let it to the plaintiffs, and it has been found that the Hazrahs and their tenants, the plaintiffs, had been in adverse possession as against the patnidars, Gisbourne and Co., for the necessary number of years.
2. Now the first point which I intend to deal with is the last one which I have mentioned, namely, that before the defendant No. 1 acquired the, patni tenure of Lot Baisgram the possession of the plaintiffs, and their lessors was not adverse to him as Mauza Kamalpar was held by patnidars under the Maharaja of Burdwan. I do not think myself that there is anything in that point, for this, reason: The adverse possession which is relied upon by the plaintiffs was not against the Maharaja at all, it was really against the patnidars Gisbourne & Co. They had allowed the plaintiffs' lessors to annex this land--I am assuming for the moment that the pos* session was sufficient and for the necessary number of years.
3. Now, if this had been a question as between the lessor and the lessee, and the patnidars had been in the position of an ordinary lessee in England, there might have been some difficulty, and the lessee might not have been able to create any interest in the land or allowed any interest to be created in the land leased to him, which could bind the lessor's free hold. That is, however, a different question from that now before us, because the patnidars, Gisbourne & Co., held a permanent and heritable tenure which they had power to alienate, and, therefore, if they had in fact alienated this tank to the plaintiffs' lessors, that would have been within their power. Instead of an alienation taking place, Gisbourne & Co., the patnidars, had allowed the plaintiffs or. their lessors to take adverse possession, the effect of which has been to create an interest just the same as would be the case if it had been conveyed by the patnidars. Therefore, as between the two sets of patnidars, the plaintiffs or their lessors obtained a title to the tank in question as against the patnidars Gisbourne & Co? Then what happened is that Gisbourne & Co. sold their patni interest to defendant No. 1. Now what had they got to sell? They had their patni, less the tank the right to which they had lost by allowing the plaintiffs and their lessors to obtain a right by adverse possession: To put it quite shortly, they had not at that time any interest in the tank which they had the power to convey to defendant No.- 1 and, therefore, defendant No. 1 obtained no title. It was urged yesterday by the learned Vakil that when they sold their patni interest they relinquished all their right. It was put by my learned brother what did they relinquish? and I put the question how could they relinqaish a right which they had not got-how could they relinquish a title to the tank which they had not got? Therefore in my judgment defendant No. 1 obtained no title to the tank at all under that conveyance. The plaintiffs having obtained that title, they were entitled, to the declaration which they asked for and also a decree for possession.
4. Then it is said that the possession which the plaintiffs had, was not of sufficient character to substantiate such adverse possession as is necessary. Now I take what the learned Subordinate Judge said at page 18, 'Considering the whole evidence, I am perfectly-satisfied that the plaintiffs exercised acts of possession in the tank publicly and openly and continually since 1290, asserting that they held the tank under the Hazrahs,' and that is a statement which is equivalent to an allegation that they had exercised this right of possession nee it, nee clam, nec precario, asserting their right to the tank, asserting it openly and continuously and without interruption: and it appears that the acts upon which the learned Judge relied are such acts as these, fishing in the tank, letting out the fishing to other people, mortgaging the tank, which means mortgaging the soil on which the water rests. I must say I do not see how the learned Judge of the first Appellate Court could come to any other conclusion upon the facts than that to which he did. In my opinion, the acts of possession were of sufficient character to justify the decision.
5. For these reasons I think that this appeal should be dismissed with costs.
Asutosh Mookerjee, J.
6. I agree that the decree made by the Courts below in favour of the plaintiffs must be affirmed.
7. The plaintiffs instituted this suit on the 15th December 1909 for declaration of their title to a tank, which bad been attached, under Section 146 of the Criminal Procedure Code on the 8th January 1907. Their case was that they held the tank under a lease granted to them on the 24th September 1883 by the Hazrahs, who were in possession as patnidars of Dubrajpur, under the 1st defendant. They alleged that they were in peaceful occupation till 1906, when the officers of the 1st defendant forcibly caught fish from the tank and disturbed their possession. The 1st defendant stated that the tank was not included in the patni of Dubrajpur held by the Hazrahs under him but was comprised in a patni Baisgram held under him by Gisbourne & Co. He further alleged that he had on the 25th November 1899 purchased the patni right in Baisgram from Gisbourne & Co. and was consequently entitled to take possession of the tank.
8. The Courts concurrently found that the tank was included in the patni of Baisgram held by Gisbourne & Co. and not in the patni oi Dubrajpur held by the Hazarhs. But they have also found that, from before 1883, the Hazrahs had taken possession of the tank as included in their patni of Dubrajpur and that from the 24th September 1883, the plaintiffs had been in occupation thereof as tenants under the Hazrahs on the basis of the lease previously mentioned. In this view the Courts below have held that the plaintiffs had acquired a good title to the tank in dispute by adverse possession, and that consequently they were entitled to a decree for declaration of title and recovery of possession as against the 1st defendant.
9. On the present appeal that decree has been assailed on two grounds: first, that the acts exercised by the plaintiffs in respect of the disputed tank did not constitute adverse possession and were not sufficient to extinguish the title either of Gisbourne & Co., or of the 1st defendant, and, secondly, that even if these acts constituted adverse possession, they were of no avail as against the 1st defendant, who, it has been argued, I would not as proprietor be affected by adverse possession so long as the patni of Gisbourne & Co. was in full operation.
10. As regards the first point, the appellant has argued that the act of catching fish in a tank does not constitute adverse possession of the tank, though possibly the person who catches fish may acquire a prescriptive right to; fish in the tank. It appears, however, that not only was fish caught from the tank by the plaintiffs but that the tank was actually sub-let, mortgaged and re-excavated by them. It cannot be disputed that these were acts of possession in assertion of ownership. As was laid down in the case of Bhaskarappa v. Collector of North Kanara 3 B. 452 the essential elements of possession are a fixed, definable and exclusive occupation present to the perception of the parties. In the case before us, there can be no doubt that the plaintiffs claimed the land on which the tank stood as their leasehold interest under the patni of the Hazrahs, and, in assertion of such right, let it out to sub-tenants from time to time, mortgaged it and re-excavated it. It cannot be seriously contended for a moment that these acts could be interpreted as assertions of a mere right of fishery. As observed in Vencatrama Aiyar v. Secretary of State for India 5 Ind. Cas. 118 : 20 M.L.J. 74 : 7 M.L.T. 139 : 33 M. 362 although the mere appropriation (of fish from a tank may not necessarily) constitute adverse possession, a very different interpretation must be placed upon acts of an obviously proprietary character such as the expenditure of large sums in clearing silt out of the tank. In my opinion, the Subordinate Judge properly held that the possession of the tank by the plaintiffs was adequate in continuity, in publicity and in extent to show that it was adverse to the owner. The first contention of the appellant consequently fails.
11. As regards the second point, it may be conceded that there are expressions in the judgment of the Subordinate Judge to which exception may be taken, for instance, the statement that the possession of the plaintiffs was adverse possession against the first defendant up to the year 1899. The title of the first defendant by purchase did not accrue till the 25th November 1899. Up to that date, the possession of the plaintiffs was unquestionably adverse to Gisbourne & Co., the patnidars of Baisgram but it could not be described as adverse possession against the 1st defendant. In fact, at that time, the plaintiffs professed to hold the tank as lessees under the Hazarahs who were patnidars of Dubrajpur under the 1st defendant himself. But although the view indicated by the Sub-ordinate Judge in the passage mentioned may not be sound the question still arises, whither the 1st defendant has acquired by his purchase from Grisbourne & Co., a title which enables him to resist successfully the claim of the plaintiffs? Now, the facts already stated show that before the 25th November 1899, the plaintiffs had, by adverse possession against Gisbourne & Co., commencing from at least the 24th September 1883, acquired a good title as against them: in other words, the encroachment by the plaintiffs had accrued to the benefit of their landlord and had resulted in the annexation of the tank to the patni of Dubrajpur. The true position, then on the 25th November 1899, was-, that Gisbourne & Co. had lost title to the tank as patnidars and the Hazrabs had acquired an indefeasible title therein by th,e operation of Section 28 of the Indian Limitation Act. Consequently, the conveyance by Gisbourne and Co. in favour of the 1st defendant, although intended to transfer their entire interest as patnidars of Baisgram, operated in law in respect of such lands only as still remained, in their occupation. The 1st defendant, accordingly, did not acquire by his purchase any title the tank in dispute. Consequently, he cannot successfully resist the claim of the plaintiffs, who are entitled to have a decree, as against him for declaration of title and recovery of possession. His position might have been very different if he had acquired the patni, which, be it observed, is a permanent interest Sonet Kooer v. Himmnt Bahadoor1 C. 391 : 25 W.R. 239 (P.C.) : 3 I.A. 92 not by private purchase from Gisbourne and Co. but at a sale under the Patni Regulation or in execution of a decree for arrears of rent. The view I take is supported by the decision in Gobinda Nath Shaha Chowdhry v. Surja Kanta Lahiri 26 C. 460 but it is necessary to add that no question arises in this litigation as to the legal effect of the incorporation of this tank into the patni of Dubrajpur held by the Hazrahs and we do not decide what rights and remedies, if any, the 1st defendant may as superior proprieter have acquired as against the Hazrahs.