Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiff appellants to recover possession of a certain land.
2. The defence raised various points, of which it is necessary to notice only one, namely, limitation.
3. The first Court dismissed the suit, and the decree of the first Court has been affirmed by the Lower Appellate Court, which has based its judgment only upon the ground of limitation.
4. In second appeal it is contended for the plaintiffs that the Lower Appellate Court is wrong in law in holding that the case is barred by limitation. The facts of the case as found by the Lower Appellate Court are shortly these: The land in dispute, along with other lands, had been let out in putni and darputni by the plaintiffs' predecessor in title, but whilst the putni and darputni were in existence, the defendant or their predecessors took possession of the land in dispute adversely to the putnidar and darputnidar, and they have continued in possession.
5. Subsequently, that is on the 29th June 1881, the putni and darputni were relinquished by the putnidar and darputnidar in favour of the plaintiffs, and the plaintiffs brought the suit on the 28th June 1893 to recover khas possession of the land in dispute. Upon these facts the Lower Appellate Court has held that, as the possession of the defendant had extended over more than twelve years before the date of the institution of the suit, it is barred by limitation, notwithstanding that the date on which the relinquishment took effect was within twelve years before suit.
6. In second appeal it is contended that this view is wrong, and that the plaintiff's are entitled to reckon time from the date when the relinquishment took effect, that being the date on which the possession of the defendant became adverse to the plaintiff within the meaning of Article 144 of the second schedule of the Limitation Act, which governs this case.
7. In support of this contention Nuffer Chandra Pal Chowdhry v. Rajendra Lal Goswami (1897) I.L.R., 25 Cal., 167; Gunga Kumar Mitter v. Asutosh Gossami (1896) I.L.R., 23 Cal., 863; Sarat Sundari Dabia v. Bhobo Pershad Khan Chowdhuri (1886) I.L.R., 13 Cal., 101; and Chinto v. Janki (1892) I.L.R., 18 Bom., 51, have been relied upon.
8. We are of opinion that the contention urged on behalf of the appellants is not sound, and that the cases cited are all distinguishable from the present. As the putni and darputni here came to an end not by reason of any sale for arrears of rent but by voluntary relinquishment by the putnidar and darputnidar in favour of the zamindar, the case cannot come under Article 121 of the second schedule of the Limitation Act. The article of the Limitation Act under which the case properly comes is, no doubt, Article 144, and the period of limitation is twelve years, running from the date when the possession of the defendants became adverse to the plaintiffs.
9. The question then is when did the possession of the defendants become adverse to the plaintiffs.
10. It is contended that it must be on the date when the relinquishment in favour of the plaintiffs took effect. The term 'plaintiff,' according to Section 3 of the Limitation Act, includes any person from or through whom the plaintiff derives his right to sue; and the present plaintiffs derive their right to sue for khas possession through the putnidars and darputnidars who were entitled to such possession, and who have relinquished their rights in favour of the plaintiffs. That such relinquishment operates only as a transfer of the tenure is clear, not only upon general principles, but also from the express terms of Section 12 of Regulation VIII of 1819.
11. That being so, the time from which limitation runs must be the date when the possession of the defendants became adverse to the putnidars and darputnidars, who were dispossessed by them, and that date has been found by the Lower Appellate Court to be more than twelve years before the institution of the suit.
12. It remains now to consider the cases cited. The first case, Nuffer Chandra Pal Chowdhry v. Rajendra Lal Goswami (1897) I.L.R., 25 Cal., 167, was clearly one under Article 121 of the second schedule of the Limitation Act, and can have no bearing on the present case. In the second case cited, viz., Gunga Kumar Mitter v. Asutosh Goswami (1896) I.L.R., 23 Cal., 863, the landlord had become entitled to possession not by virtue of relinquishment by the tenants, but by reason of the sale of the under-tenure for arrears of rent; and so that case also is distinguishable from the present.
13. In the case of Sharai Sundari Dabia v. Bhobo Pershad Khan Chowdhuri (1886) I.L.R., 13 Cal., 101, it was held that limitation did not run in favour of a trespasser, and as against the zemindar, so long as the zemindari was in the possession of an ijaradar, because the zemindar upon the expiry of the ijara became entitled to possession in his own right, and not through the ijaradar. The same thing cannot be said in this case.
14. It cannot be said that the zemindar became entitled to khas possession by reason of the putni having come to an end otherwise than by the voluntary act of the putnidar. The case of Chinto v. Janki (1892) I.L.R., 18 Bom., 51, was one of a mortgagor suing for redemption. The plea of limitation was there urged by a person who had taken adverse possession as against the mortgagee Whilst the mortgaged property was in the possession of the mortgagee; and it was held that such adverse possession could not affect the right of the mortgagor to redeem, he not claiming through the mortgagee.
15. In the present case, as we have said above, the plaintiffs became entitled to khas possession by the relinquishment of the putnidars and darputnidars, and so they must be held to be affected by the adverse possession that was taken against the putnidars and darputnidars, whose rights they had acquired through their voluntary relinquishment.
16. It was argued that if the view taken by the Lower Appellate Court be correct, it would prejudicially affect the rights of the landlord, because he would be affected by adverse possession before he became entitled to possession himself.
17. The answer to this argument is this, that the zemindar is not bound to accept any relinquishment by the putnidar. That was held in the case of Heera Lall Pal v. Nil Monee Pal (1873) 20 W.R., 383, and in Judoo Nath Ghose v. Schoene Kilburn & Co. (1883) I.L.R., 9 Cal., 671.
18. Where a zemindar finds that the putnidar or other permanent tenant, after having allowed a trespasser to hold adverse possession of any land included in the permanent tenure for more than twelve years, offers to relinquish it, the zemindar can always refuse to accept the relinquishment; and if rent remains unpaid, he can bring the tenure to sale for arrears of rent, and the purchaser at such sale would be entitled to avoid any incumbrance created by the defaulting putnidar, and would not be bound by any adverse possession held against the latter.
19. For all these reasons we are of opinion that the Court of Appeal below was right in holding that the suit was barred by limitation; and the appeal must consequently be dismissed with costs.
20. This judgment admittedly governs the analogous appeals, which will accordingly be dismissed with costs.