S.R. Das Gupta, J.
1. This appeal has been argued with great abi-lity by the learned Advocates on both sides and as a result of their arguments the questions involved in it have been narrowed down to a very short compass.
2. The facts are as follows: The plaintiffs are the appellants before us. The suit out ofwhich this appeal arises was a suit for resumption of chakran lands. The trial Court passed a decree, but the lower appellate Court set it aside on the ground that the suit was barred by limitation. It is against that decision of the lower appellate Court that the present appeal has been preferred to this Court.
3. I should mention that in the settlement khatian in which the lands in suit are recorded one Bam Kumar, trie father of the defendants, was recorded as dakhalikar; 'Chakran Kamar'was the entry in the next column. In the place provided for noting the rent the entry is 'nish-kar'. In the year 1925 a suit was instituted by the plaintiffs for recovery of possession of the said lands.
The plaint in the said suit was filed in aCourt which had no jurisdiction to try it. Written statements were filed by the defendants in which besides taking the objection as to jurisdiction theydenied liability of service. The defendants denied the title of the plaintiffs and their right to file a SUIT for possession and they claimed title in themselves as holding the lands in 'nishkar'.
The plaint, which, as I have said, was filed in a Court which had no jurisdiction to entertain it, was returned for presentation to the proper Court, but the plaintiffs did not present it to a proper Court. In 1944, that is more than twelve years after the Institution of the said suit, the present suit has been filed by the plaintiffs lor resumption of the lands in question.
Both the Courts have found that the defendants refused to render service in 1925 when the first suit was filed and they have since then been in possession. Both the Courts have negatived the plea of the plaintiffs namely that since the filing of the said suit there was a reconciliation between the parties and the defendants continued to render service thereafter.
The first Court, however, decreed the suit, bat the lower appellate Court dismissed it on the ground that in view of the facts stated as above the plaintiffs' claim was barred by limitation; in other words, the view taken by the lower appellate Court was that the defendants have acquired adverse title by assertion of a hostile right and being in possession for a period of more than 12 jeers.
4. Mr. Mukherjee appearing on behalf of the appellants contended before us that the view taken by the lower appellate Court was wrong and should be set aside. He relied on the Privy Council decision in the case of -- 'Lakshameounda, Basavprabhu v. Baswantrao' , where it has been held that a distinction has to be borne in mind between the grant of an office to be remunerated by the use of land and the grant of land burdened with service.
In the former case the land will be prima facie resumable, in the latter case 'prlma facie', it will not, but the terms of the grant and the circumstances in which it was made may establish a condition of the grant that it was resumable. Mr. Mukherjee contended before us that the present case comes within the first category; in other words, it is a case where there has been a grant of an office to be remunerated by the use of land and not grant of land burdened with service.
If that be so, then according to Mr. Mukherjee the possession of the defendants was really that of a licensee and unless there has been a revocation of such license, the defendants cannot, in view of the provisions of Section 116, Evidence Act, plead adverse possession. At this stage I should mention that Dr. Sen Gupta appearing on behalf of the respondents also conceded before us that so long as the license continues, the licensees will not be able to acquire a title by adverse possession.
Mr. Mukherjee's contention further was that in this case there was no revocation of the license. The filing of a suit on which the. lower appellate Court relies cannot according to him amount to a revocation of the license, firstly because it is not a suit filed in the proper Court and, secondly because, the plaint and its contents have not been proved in this case.
He, further contended before us that there must be in the first instance revocation of license before a suit can be filed. The filing of a suit by itself would not amount to such revocation.
5. The second branch of Mr. Mukherjee's argument is that even if we hold that the lands in question belong to the second group as mentioned in the said Privy Council decision, that ia to say, they are lands burdened with service and a tenancy has been created in respect thereof, there is no evidence in this case and there Ts no finding that there has been termination of the tenancy prior to the institution of this suit; in other words, Mr. Mukherjee's contention is that the Institution of a suit by itself would not amount to termination of a tenancy, but there must be termination in fact before the suit ia instituted in order to enable the plaintiffs to maintain such a suit.
He referred us to the provisions of Section 111(g). Transfer of Property Act and contended that under the said provisions there must be a notice given in writing before the forfeiture becomes complete. He, however, conceded before us that the present case is not governed by the amended provisions of the Transfer of Property Act but must be governed by the Act as it stood before such amendment.
Under the old law what was necessary to be done, so that a forfeiture may be complete, was some act on the part of the landlord showing an Intention to determine the lease. In this case, Mr. Mukherjee strenuously argued before us, In order to constitute forfeiture there must have been some overt act other than mere institution of the suit on the part of the landlord. The institution of the suit In 1925 cannot by itself amount to termination of the tenancy.
There must be evidence of some other overt act which is wanting in this case. On this footing Mr. Mukherjee contended that the tenancy In question was not terminated by what was done in 1925, that is to say, by institution of the suit, out it continued thereafter and the relationship of a landlord and tenant still subsisted between the plaintiffs and the defendants.
If that be so, then in view of the provisions of Section 116, Evidence Act a tenant will not be entitled during the subsistence of the tenancy to assert or to acquire title by adverse possession. Dr. Sen Gupta also conceded before us that the abstract proposition of law as stated by Mr. Mukherjee was correct, that is to eay, during the subsistence of the relationship of landlord and tenant the tenant cannot acquire title by adverse possession.
6. Dr. Sen Gupta, In the first place contended before us that this is not a case where there was a grant of office to be remunerated by the use of the land but it was a case where there is a grant of land burdened with service, If that be so, then according to him the institution of the suit by the plaintiffs in 1925 amounted to termination of the tenancy of the defendants.
Dr. Sen Gupta contended before us that in the present case the fact that such a suit was instituted showed the intention of the plaintiffs to determine the tenancy : in other words, the institution of the suit in 1925 amounted to a complete act showing the intention to determine the lease.
Dr. Sen Gupta also contended before us that the present suit was filed by the plaintiffs after the amended provisions of the Transfer of property Act came Into operation and that being so, it is necessary for the plaintiffs in any event to give a notice terminating the tenancy before the plaintiffs can succeed in this suit. No such notice was given in this case and therefore in any view of the matter this suit must fail.
7. Dr. Sen Gupta in the second place contended before us that the record-of-rights in this case shows quite clearly that what was granted was not an office to be remunerated by the use of the land, but the land burdened with service. His contention was that entries under the provisions of the Bengal Tenancy Act show the name and status of the person who has an interest in the land.
The mere possession of the land would be recorded, without an intrrest in it would not entitle a person to have his name recorded in the record-of-rights; otherwise, according to him, the names of bargadars and bhag chasis ought also to be recorded in a record-of-rights, but they are in fact not so recorded.
That being so, the fact that there has been ah entry recording the name of Ram Kumar as a 'chakran kamar' and as holding the land in 'nishkar' in 'bhog dakhal' right shows that the said Ram Kumar has an interest in the land; otherwise, if the said Rani Kumar was merely a servant who was to be remunerated by the profits of the land, his name would not have been recorded in the record-of-rights.
In any event, Dr. Sen Gupta contended before us that the record-of-rights is capable of supporting the contentions of both the parties and it is for the plaintiffs to establish that the present case comes under the first group of cases mentioned in the said Privy Council case and if the plaintiffs cannot establish that, then the plaintiffs' suit must fail. These are the respective contentions of the parties before us.
8. The first question, therefore, which arises for our decision is to which of the two classes mentioned by their Lordships of the Judicial Committee the land in this suit belongs; in other words, is it a case where there has been a grant of an office to be remunerated by the use of the land or is it a case where there has been a grant of a land burdened with service?
I should mention that the trial Court came to the conclusion that the land in suit belongs to the first category. There is no clear decision on this point by the lower appellate Court. In the normal course of events the matter ought to be sent back to the lower appellate Court for coming to a decision on this question. But having regard to the circumstances of this case to which I shall presently refer we have come to the conclusion that the question can be disposed off by us in this appeal.
The only evidence on this point is the settlement record. Had there been any other evidence we would have been disposed to send the case back to the lower appellate Court for reconside-. ration. But as there is no other evidence on' this point and as the question Has to be decided only on the consideration of the said settle-ment record, the point can be disposed of in this appeal.
All that we have to decide is whether the entries appearing in the settlement record support the case of the appellants or of the respondents. I agree with Dr. Sen Gupta that in a settlement record the name and status of a per-son is entered only if such a person has an inte-rest in the land in question; otherwise as Dr. Sen Gupta points out the bargadars or the bhag chasis would be equally mentioned in the settlement record.
There must be in my view some interest in the land which would entitle a person having such Interest to have his name and status re- corded in the settlement record-of-rights. In that view of the matter I have come to the conclusion that the entries in the settlement records support the contention of the respondent and show that what was granted was the land burdened with service.
Mr. Mukherjee drew our attention to an observation of his Lordship R. C. Mitter J. In the case of -- 'Atul Chandra Roy v. Saroda Sundari' : AIR1936Cal49 . The observations to which our attention has been drawn read as follows :
'The nature of their Interest is described by the words 'karsa chakran'. The learned Subordinate Judge interprets these words to mean a holding burdened with service. I do not agree with the interpretation put by the learned Subordinate Judge on this entry, if that entry has any meaning, it means that the lands constl-tuted a service tenure, the character of the lands being agricultural lands.' But it should be noted that his Lordship made it quite clear that his Lordship was not basing his judgment on the interpretation put upon the words 'karsa chakran'. It seems to me that the observation to which reference has been made was In the nature of an 'obiter dictum1. I have come to the conclusion that on proper interpretation of the entries in the settlement record-of-rights it must be held that there was a grant of the land in question burdened with service. In any event if as the lower appellate Court pointed out these entries in the settlement record in question are capable of supporting, either side and are equivocal then also the appellants must fail. It is for the appellants to establish their own case and to show that the lands in question come within the first category mentioned In the Privy Council case and if they cannot do it, then the appellants must fail.
9. Having come to the aforesaid conclusion the next question which arises for our consideration is has the tenancy in question been deter-lined by what was done in 1925? In other words, did the institution of the suit by the plaintiffs In the year 1925 operate as termination of the tenancy?
Mr. Mukherjee contended before us that the Institution of a suit by itself cannot terminate a tenancy, but there must be a prior termination of the tenancy by some other act on the part of the parties concerned and that should form the ground for Institution of the suit; in other words, according to Mr. Mukherjee unless there is a prior termination of the tenancy in question, a suit would not lie and, therefore, the institution of the suit itself could not operate as termination of the tenancy.
Ordinarily that may be so, but the position in this case has become different because of the fact that prior to the institution of this suit there was the object. The question in this case is whether the Institution of that suit amounted to an act showing an intention to determine the lease so as to enable the plaintiff to file the present suit seems to be covered by a decision of this Court in the case of -- 'Ramnath Sil v. Siba Sundari Debya' AIR 1917 Cal 116 (C). In that case there was a service tenure created before the passing of the Transfer of Property Act.
A suit was Instituted to eject the service tenant on the ground that his tenancy had been forfeited by reason of his refusal to render service. The suit was withdrawn with liberty reserved to institute a fresh suit on the same cause of action. The question arose whether there was a sufficient notice within the meaning of Clause (g)of Section 111, Transfer of Property Act. In dealing with that question Mookerjee J. who delivered judgment in tha't case observed as follows :
'It is also plain that if Clause (g) be held applicable, the lessors did, in the present case, signify, prior to the institution of the suit, their Intention to determine the lease. In 1908, they instituted a suit to eject the defendants on the ground that their tenancy had been forfeited by reason of their refusal to render service: that suit was withdrawn with liberty reserved to institute a fresh suit on the same cause of action. This was sufficient notice of intent to forfeit.'
In my opinion the decision In that case and the observation to which I have just now referred covers the question we have now to consider in this appeal. I also agree with the same. I have, therefore, come to this conclusion that the institution of the suit in 1925 amounted to an act showing intention to determine the lease. If that be so, then it must follow that the defendants acquired an interest by adverse possession.
It has not been disputed before us that if the relationship of landlord and tenant between the parties had terminated then the tenant aftersuch termination can assert a hostile title against the landlord. In the present case the defendants did assert a hostile title against the plain-tiffs and on assertion of such title remained in possession for a period of over 12 years.
There can be little room for dispute that under those circumstances the defendants acquired title by adverse possession. There was some argument before us on the meaning of adverse possession. What Is adverse possession is laid down quite clearly by .Markby J. In the case of -- 'Bejoy Chunder v. Kally Prosonno' 4 Cal 327 (D). His Lordship observed as follows :
'By adverse possession I understand to be meant possession by a person holding the land,on his own behalf, of some person other thanthe true owner, the true owner having a right to immediate possession. If by this adverse possession the Statute is set running, and it continues to run for twelve years, then the title of the true owner is extinguished and the person in possession becomes the owner.'
In my opinion, judged by the test laid down by his Lordship the defendant in his case acquired title by adverse possession. In this case also the tenants after the termination of the tenancy were holding the land on their own behalf asserting their own title and the statute of limitation in such circumstances began to run and had continued to run for more than 12 years. The decision of the lower appellate Court on this point is affirmed.
10. Even if we hold that the Institution of the suit in 1925 did not amount to a termination of the tenancy in question, the appellants would not be in any better position. The result in that case would be that the tenancy must be held to have continued right up to the date when this suit was instituted and at the date when this suit was Instituted the amended provisions of the Transfer of Property Act had come into operation. '
It was, therefore, necessary before this suit can succeed to show that a proper notice as contemplated in Sub-clause (g) of Section 111, Transfer of Property Act had been given by the landlords as in the absence of such notice, there ts no forfeiture and if there is no forfeiture, then this suit would not lie. So, even on this view of the matter the plaintiffs must be non-suited and the appeal must fail. I hold that the. appellants must fail in their contentions.
11. Having come to the aforesaid conclusion it is not necessary for us to consider the question namely what would be the position if the defendants were licensees, or in other words, if the land in question belong to the first class mentioned in the Privy Council decision. But as this point has been argued before us, I only indicate my views thereon. It seems to me that the institution of the suit in 1925 would also result in termination of the license under which the defendants may have held the land in question.
I see why in this case there would be a difference in the position of a tenant and that of a licensee. If the institution of the suit in 1925 would amount to termination of the tenancy, had the defendants been tenants, I do not see why such institution would not also ope-rate as revocation of the license in favour of the defendants, if the defendants be held to be such licensees. In my opinion, therefore, the license, if any, has equally been revoked by the conduct of the plaintiffs namely the institution of the suit in 1925.
12. The result, therefore, is that the appellants must fall and the appeal is dismissed with costs.
13. I agree.