1. These two appeals arise out of a suit for khas possession of certain lands described in Schs. Ka and Kha of the plaint on declaration of the plaintiffs' title thereto. S.A. 1417 relates to the lands of Sch. Ka. This appeal is not pressed and is therefore dismissed without costs. The subject matter of S.A. 1416 is the land mentioned in Sch. Kha of the plaint. The plaintiffs' case, so far as the land of Sch. Kha is concerned, briefly stated, is as follows:
2. They are the proprietors of Touzi No. 3070 of the Midnapur Collectorate. Village Brindaban Chawk appertains to this touzi. The lands in suit were Chowkidari Chakran lands of this village. They were resumed by Government in Misc, Case No. 28 of 1917-18 along with other lands and were transferred to the plaintiffs by an order of the Collector of Midnapore, dated 23rd January 1920, under Section 50, Village Chowkidari Act (Bengal Act 6 of 1870). The said order of the Collector was communicated to them on 8th March 1920. Thereafter they attempted to take Khas possession of the lands but were not allowed to do so by defendants 2, 15 and 16 on the allegation that these lands were held by defendants 15 and 16 as tenants under defendant 2. On 7th March 1932 the plaintiffs raised the present suit in the Court of the Subordinate Judge of Midnapur for possession of these lands. They also prayed in the alternative for a deduction of Rs. 15-6-4 from their contribution to the Chowkidari fund payable under the order of transfer by the Collector in case it was held that they were not entitled to get possession of these lands.
3. Defendant 1, the Secretary of State for India in Council, did not dispute the plaintiffs' right to get khas possession of the disputed lands on the strength of the order of the Collector under Section 50, Chowkidari Act. Defendant 2 pleaded that the disputed lands appertained not to village Brindaban Chawk of Touzi No. 3070 but to village Lakshmikundu within his Touzi No. 572, that they were resumed by Government and transferred to him in 1907 by an order of the Collector of Midnapore under Section 50, Chowkidari Act, and since then he was in possession of these lands through defendant 15 and one Brindaban Chandra Das as his tenants. He also pleaded that the plaintiffs' claim was barred by limitation. Defendant 15 filed a written statement supporting defendant 2. The learned Subordinate Judge who tried the suit held that the plaintiffs had title to these lands and that the plaintiffs' suit was not barred by limitation. He accordingly passed a decree for possession in favour of the plaintiffs. An appeal was taken by defendants 2 and 15 to the lower appellate Court. The learned District Judge who heard the appeal has found against the plaintiffs both on the question of title and limitation and has dismissed the plaintiffs' suit for possession. The plaintiffs appealed to this Court. Two points arise for determination in this appeal: (1) whether the plaintiffs have title to the disputed lands and (2) whether the plaintiffs' suit is barred by limitation. The decision of the learned District Judge on the question of title is as follows:
If it is found that the lands appertain to Mouza Lakshmikundu then plaintiffs must fail. It should be noted that the lands fall within the geographical limits of Brindaban Chawk. The defendants alleged that they are chitta dags of Lakshmikundu. The only evidence on this point is that they were recorded in the record-of-rights as appertaining to Brindaban Chawk. It may also be said that the proceedings in 1907 are themselves some evidence showing to which mouza the lands appertain. It is difficult to explain how the chowkidari lands of the chowkidars of one village could lie in another village. Therefore, if it is found that the lands lie within the geographical boundaries of that other village, this in itself may be taken as some evidence as showing that they nevertheless appertain to the first village. In my opinion these 1907 proceedings are in themselves sufficient to rebut the evidence of record-of-rights and I hold that the lands appertain to Mouza Lakshmikundu.
4. The decision of the learned District Judge in substance amounts to this: that the record-of-rights is the only evidence in support of the plaintiffs' title and that the presumption arising out of the record in favour of the plaintiffs has been rebutted by the resumption proceedings of the Collector in 1901-1907. The question is whether the learned District Judge was right in holding that the papers relating to the resumption proceedings which resulted in settlement of these lands with defendant 2 rebuts the presumption which arises out of the entries in the record-of-rights in favour of the plaintiffs. The learned District Judge's judgment indicates that in his opinion that evidence was in itself sufficient to rebut the record-of-rights. The learned District Judge was also of opinion that the record-of-rights was the only evidence in support of the plaintiffs' title. It appears however that in addition to the settlement record the plaintiffs put in evidence the later resumption proceedings of the year 1917-1918 under the Chowkidari Act to show that the disputed lands are the Chowkidari Chakran lands lying within the plaintiffs' estate. The learned District Judge has overlooked this important evidence altogether. If the presumption proceedings of the year 1901 to 1907 are evidence to show that the disputed lands lie within Mouza Lakshmikundu, the subsequent resumption proceedings of the year 1917-1918 are also evidence to show that the disputed lands lie within Mouza Brindaban Chawk which appertains to plaintiffs' touzi. The learned Judge in arriving at his conclusion was under a misapprehension that the record-of-rights was the only evidence in support of the plaintiffs' title. The finding of the learned. District Judge therefore being based on a portion of the evidence only is not binding on us in second appeal. As the evidence on the record is sufficient for the determination of the question whether the disputed lands appertain to village Brindaban Chawk or village Lakshmikundu we intimated to the learned advocate appearing for the parties in this case that we would determine this issue of fact under Section 103, Civil P.C., and the learned advocate thereupon asked us to adjourn the hearing of this appeal for a few days. That prayer was allowed and we have again heard the learned advocates appearing for the parties today.
5. It appears from the written statement of defendant 2 that he claims the disputed lands as appertaining to village Lakshmikundu. A Commissioner was appointed at the instance of the plaintiffs by the trial Judge to hold a local investigation. His finding is that the disputed lands are within Mouza Brindaban Chawk. The settlement record also shows that the disputed lands are within Mouza Brindaban Chawk which appertains to Touzi No. 3070 belonging to the plaintiffs. In order to rebut this evidence on the side of the plaintiffs, defendant 2 relied upon the resumption proceedings of the year 1901 to 1907. It has already been pointed out that in the subsequent proceedings these lands were taken as Chowkidari Chakran lands of village Brindaban Chawk. The resumption proceedings of the year 1901 to 1907 therefore loses much of its evidentiary value. At the time of the hearing of the suit D.W. 7, the Collecting Panchayat, stated in examination-in-chief that the disputed lands were the chita lands of Mouza Lakshmikundu lying within the territorial limits of village Brindaban Chawk. In cross-examination however he admitted that he came to know of the existence of these chita lands from the collection papers of defendant 2. These collection papers however were not produced by defendant 2 and it may be presumed that if produced they would not support his case. The evidence of defendant 15 is also not of much assistance to defendant 2. It may be mentioned here that both the plaintiffs and the defendants admitted in the present case that there is no evidence on the record of the present case to indicate that there had been any proceeding under Sections 58 to 61, Village Chowkidari Act, before the lands were transferred to defendant 2 in 1907 or before they were transferred to the plaintiffs in 1920. Under these circumstances we are of opinion that the defendants have failed by any satisfactory evidence to rebut the presumption arising in favour of the plaintiffs out of the record-of-rights which shows that the disputed lands are within the village Brindaban Chawk which appertains to plaintiffs' Touzi No. 3070. It cannot be disputed that under Section 48, Village Chowkidari Act, the plaintiffs are entitled to have these lands transferred to them. The Collector of Midnapore transferred these lands to the plaintiffs under Section 50, and under Section 51 of the Act they acquired good title to these lands.
6. The next question for determination is whether the plaintiffs suit is barred by limitation. The finding of the learned District Judge on this point in substance is this: The plaintiffs could have sued for transfer of the disputed lands to them in 1907. Defendant 2 is in possession of these lands through his tenants since 1907. The possession of defendant 2 therefore became adverse to the plaintiffs from the year 1907. The present suit was instituted on 7th March 1932 and consequently the plaintiffs' title to the property has been extinguished by adverse possession of the defendants for more than 12 years under Article 144, Lim. Act. It is not disputed by the learned advocates appearing for the parties in this case that the present suit is governed by Article 144, Lim. Act. The only question is, when did the possession of defendant 2 become adverse to the plaintiff? The contention of the plaintiffs is that the possession of defendant 2 through his tenants did not and could not, under the law, become adverse to them until and unless they got the order of transfer from the Collector of Midnapore under Section 50, Village Chowkidari Act, in the year 1920, which entitled them to the possession of these lands. The contention of defendant 2 is that his possession became adverse since 1907 as the plaintiffs' right to sue for possession accrued in 1907.
7. It cannot be disputed that possession of a trespasser cannot be adverse to the real owner so long as the real owner is not entitled to possession and is therefore not in a position to put an end to the trespass. The estate taken by the plaintiffs under the order of transfer in 1920 is no doubt in confirmation and by way of continuance of their existing estate: see the case in Ranjit Singh v. Kalidasi Debi AIR 1917 P C 8. But before the order of transfer they had no power to remove the chowkidars who were entitled to be in possession of these lands as their chakran for their services to village Brindaban Chawk and to take possession of these lands. The decennial settlement recognizes the interests both of the zamindars and of the public in these Chowkidari Chakran lands. As these chowkidars were employed not only to keep watch on the zamindars' property in the village but also to preserve peace and good order of the village, Government as representing the public reserved strict control over them. These Chowkidari Chakran lands were no doubt annexed to the malguzari lands of the estate at the time of the Permanent Settlement and were declared responsible for the different revenue assessed on the estate. But they were appropriated by the zemindars with the permission or under the authority of the Government for the purpose of remunerating the chowkidars for their services to the zemindars as well as to the public. The public as well as the zemindars therefore had a right to the performance of the service by the chowkidars until and unless the right to such performance was determined by an order of transfer of their chakran lands to the zemindars strictly in compliance with the provisions of the Chowkidari Act: see Section 57 of the Act. The contention of defendant 2 is that by the order of transfer in 1907 the right of the public as well as of the zemindars to the services of the chowkidars who were in possession of these lands as their chakran lands came to an end in 1907 with the result that the right of the chowkidars to possess these lands as chakran lands also came to an end in that year and consequently the plaintiffs' right to sue for possession accrued in 1907. The contention of the plaintiffs is that the rights of the public or of the zamindars or of the chowkidars did not come to an end till the order of transfer was made in their favour in the year 1920.
8. Now, although the disputed lands are the Chowkidari Chakran lands of Mouza Brindaban Chawk, in the year 1907, they were treated as Chowkidari Chakran lands of Union VI, Thana Daspur, within which Brindaban Chawk was not included, and their contribution went to the Chowkidari fund of that Union. The position in 1907 was this: that although the disputed lands were the Chowkidari Chakran lands of Mouza Brindaban Chowk, these lands contributed nothing to the Chowkidari Fund of Union IV of thana Panshkura within which Mouza Brindaban Chawk was included. The right of the chaukidars of this Union therefore to possess these lands in lieu of their service to Union IV was therefore not in any way affected by the order of transfer in 1907, as the Chowkidari Act does not authorise the resumption and assessment of Chowkidari Chakran lands for the benefit of a village or group of villages for which they were not originally assigned. It does not contemplate the confiscation of the rights of Choukidars to possess lands assigned to them for their services in the villages for the benefit of which they were originally assigned until the assessment of their Chakran lands has been made payable to the Chowkidari fund of the village or villages in which they serve. The zemindars' right to possess therefore cannot accrue so long as the Chowkidars' right to possess continues. The right of the Chowkidars of the village Brindaban Chawk to possess the lands therefore continued till 1920. The plaintiffs' right to take possession of these lands could not therefore arise before 1920.
9. When defendant 2 came into possession of these lands through his tenants in 1907, his possession therefore became adverse to the Chowkidars who were entitled to be in possession of these lands in lieu of their services to village Brindaban Chawk and not to the plaintiffs. The word 'plaintiff' in Article 144 includes any person from whom or through whom the plaintiff derives his right to sue. The right of the zemindars to sue for possession after the transfer under Section 50 of the Act is not derived from or through the Chowkidars whose right to the lands as their Chakran comes to an end by their transfer to the zemindar. The learned District Judge was of opinion that the decision in Sarat Chandra Roy v. Secy. of State AIR 1916 Cal 477 covers this case. The decision in that case proceeded on the footing that the first report of the Chakran Commissioner under the Chakran Act was final under Section 61 of the Act. In the present case, however, as has already been pointed out, admittedly no order under Section 61 declaring the disputed lands as Chowkidari Chakran lands of Mouza Lakshmikundu was made in the year 1907. The learned District Judge has held on the authority of the case in Pratab Narain Mukherjee v. Secy. of State (1906) 33 Cal 390 that though the Collector made a mistake in 1907 in transferring these lands to defendant 2, the plaintiffs could have sued in respect of the mistake then made. That case however is simply an authority for the proposition that under Section 48 it is not the geographical limit of the land that is to be looked into but the transfer is to be made to the zemindar of the estate to which the lands appertain and of which they form part and parcel. That case, however, is no authority for the proposition that the zemindar of the estate is entitled to possession of Chowkidari Chakran lands assigned for the benefit of a village within his estate when such lands are transferred by a wrong order of the Collector and made to contribute to the Chowkidari fund of village or villages for the benefit of which they were not originally assigned. We are therefore unable to agree with the learned District Judge that the plaintiffs' right to sue for possession accrued in 1907 and the possession of defendant 2 became adverse to the plaintiffs from that year.
10. We therefore hold that it did not become adverse to the plaintiffs before 1920. It is true that the order of transfer was signed by the Collector on 23rd January 1920 and the present suit is not within 12 years from that date, but the order was not issued till 8th March 1920. The effect of the observations of Trevelyan, J. in Bejoy Chand Mahatab v. Kristo Mohini Dasi (1894) 21 Cal 626 is that time begins to run not from the date of the order but from the issue of the order of transfer, as the proceedings are in abeyance during this period and if the plaintiffs sue before the order is actually issued they would probably be met with the plea that until the Collector issues the order, there is nothing to prevent him from cancelling it. Further the suit will be in time if the period of notice under Section 80 is added to the period prescribed by Article 144, Limitation Act. The plaintiffs' suit therefore is not barred and their title to the property has not been extinguished by adverse possession of defendant 2 for the statutory period.
11. The learned Advocate appearing for the plaintiffs did not press for ejectment of the tenants of defendant 2 from the disputed lands and conceded that they were raiyats and had already acquired occupancy rights in the disputed lands. The plaintiffs' claim for khas possession against them is therefore dismissed. The result therefore is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside, the plaintiffs' title to the disputed lands is declared and it is further declared that defendant 2 has no title to the disputed lands. The plaintiffs' prayer for possession by ejecting defendant 2 from the disputed lands is allowed. The plaintiffs will be entitled to get rent for the lands in suit from the raiyats who are in occupation of these lands as tenants under defendant 2. In the present case we express no opinion as to what would be the amount of rent which would be payable by these tenants to the plaintiffs. The plaintiffs will get from defendant 2 one-third of the costs incurred by them in the Courts below and full costs of this appeal. The defendants-respondents will bear their own costs throughout.