1. The facts of the case out of which this appeal arises are as follows. There is a tract of land in the Sunder buns of which defendant 1 took a lease from the Government and in 1901 the plaintiff's vendor obtained a lease of some 100 bighas of this land from defendant 1. In 1906 the lease which had been granted to the plaintiff's vendor's lessor was cancelled by the Government and a fresh lease was granted on the 16th August 1907. The plaintiff purchased the lease of Kalachand in the year 1910. It was his case in the first Court that he was in possession of his land by cutting wood and exercising other acts of possession till he was dispossessed by defendants 2 and 3 in 1914. Defendants 4 and 5, the purchasers of the interests of defendants 2 and 3, contested the, suit. Their main ground was that the suit was barred by limitation both general and special and that the plaintiff had acquired no title to the land in suit by his purchase which was not a genuine transaction, that ever if the alleged purchase was a genuine one, the identity of the land in suit could not be established in the locale and that the plaintiff's vendor's title was extinguished when the lease to defendant 1 was cancelled in 1906.
2. A number of issues were framed and the first Court decided the case in favour of the plaintiff and decreed the suit with costs. On appeal to the District Court the learned District Judge held that the plaintiff's case was barred by limitation,, and hence he allowed the appeal and dismissed the suit.
3. The plaintiff has appealed to this Court. He has contended that the suit was not barred by limitation. The case which he-now seeks to make to avoid the bar of limitation is that the dispossession took place in 1908 when defendant 1 granted a lease to defendants 2 and 3. Up to that time he was in constructive possession, because he had title to the land and the land was virgin jungle and no one else was in possession. As there were no acts of possession exercised on the land possession is to be considered as following the title.
4. The main difficulty that I have in accepting this contention of the learned advocate for the appellant is that this was not the case which the appellant made in his plaint. His case in his plaint was that both he and his vendor were in actual possession. No case of constructive possession was suggested by him in his plaint and the defendants had not to meet any case of constructive possession. The case which they had to meet was that of actual possession and dispossession. The plaintiff was suing in ejectment and therefore he must prove his possession within 12 years of the date of the suit. As I have pointed out the case he made in his plaint was that he had been dispossessed in the year 1914. Having made in his plaint a definite case that he was in actual possession and that his vendor was also in actual possession of the land in suit, it is not open to him now in second appeal to turn round and to avoid the bar of limitation put forward an entirely different case based on constructive possession. To succeed in the case which he now puts forward he would have to prove that no one else exercised any act of possession over the land and that hence the possession must be held to follow the title: the defendants in that case would have this definite case to meet and their evidence would have been directed towards the meeting of such a case. As I have already said that was not the case made in the Court of first instance. As Mr. Justice Chatterjea points out in the case of Rakhal Chandra Ghose v. Durgadas Samanta A.I.R. 1922 Cal. 557 such a course is not open to the plaintiff where he puts forward a definite case of actual possession and dispossession : it is not open to him, when that case fails, to turn round and put forward a case of constructive possession which obviously depends upon entirely different facts which, if the defendants had to meet, they would, doubtless, have brought forward entirely different evidence. I hive therefore no reason to differ from the finding of the learned District Judge that the plaintiff's case is barred by limitation. I would therefore dismiss the appeal with costs. My learned brother is for allowing the appeal. The result is this appeal is dismissed with costs under Section 98, Civil P.C.
B.B. Ghose, J.
5. I regret that I have to differ from my learned brother. The findings of fact arrived at by the Court of appeal below are these : defendant 1 obtained from the Government a lease of some land in the Sunderbuns. He gave a permanent lease of some 100 bighas out of this land to one Kalachand in 1901. This land has been found to have been virgin jungle. Subsequently there was an order by the Government for resumption of this land for non-performance of certain terms of the lease granted to defendant 1. The land was not actually resumed, but a renewed lease was granted to defendant 1 in 1907. The effect of this has been held by the Subordinate Judge not to have interfered with the rights of Kalachand under the permanent lease granted to him by defendant 1. This has not been controverted by the District Judge on appeal. The position, therefore, appears to be this : that Kalachand continued to remain a lessee under the permanent lease granted to him by defendant 1. Then in 1908 defendant 1 granted a lease to defendants 2 and 3 of a certain area of land which is said to have comprised the lands which had previously been demised to Kalachand. This piece of land was also described as virgin jungle. It has been found that defendants 2 and 3 cleared the jungle and brought the land under cultivation and then sold their interest to defendants 4 and 5. The plaintiff claims under a purchase from Kalachand in 1910 and sues for possession.
6. The plaintiff alleged that he had been dispossessed in 1914. The question is whether his title has been lost by dispossession in discontinuance of possession on the date of the suit, as the finding is that he has not proved dispossession in 1914 as alleged.
7. The suit was originally filed in the Court of the Munsif at Diamond Harbour on 10th June 1918, and the plaint was returned for presentation to the proper Court on a finding that the value of the property was in excess of the jurisdiction of the Munsif on 30th July 1919. The plaint was filed again in the Court of the Subordinate Judge on 6th August 1919. The important point, therefore, is whether the plaintiff has been dispossessed for more than 12 yea s prior to the date of the suit. On the finding, as I understand the decision of the learned Judge, the land was admittedly virgin forest at any rate up to 1908. Before 1908 nobody had claimed any title to the land in suit except the plaintiff's vendor Kalachand, and as it was virgin jungle up to 1908 when it was leased out to defendants 2 and 3 it cannot be said that the plaintiff's vendor was dispossessed by any person. Unless a person comes into possession of a piece of land ho ding adversely to the true owner it cannot be said that the true owner has been dispossessed. This principle seems to me to be obvious and may be deduced from the well known case of Trustees, Executors and Agency Co. Ltd. v. Short (1888) 13 A.C. 753, which has been followed in the case of Secretary of State v. Krishnamani Gupta (1902) 20 Cal. 518 and in other cases in this Court. This proposition may also find support in the cases of Kuthali Moothawar v. Peringati Kunharankutty A.I.R. 1922 P.C. 181 and Kumar Basant Roy v. Secretary of State A.I.R. 1917 P.C. 18. In my opinion, therefore, the plaintiffs were in the eye of law in the possession of the land in dispute and had not been dispossessed at any time prior to 1908 when the lease was granted by defendant I to defendants 2 and 3. The case of Rakhal Chandra Ghose v. Durgadas Samanta A.I.R. 1922 Cal. 557 in no way goes against that view. In that case evidence was given by both parties as regards actual acts of possession. What was observed at p. 736 of the report is this:
Now, where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated lands and in that of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within LA years, in the case of jungle or waste land, if he proves his title, there is a presumption in his favour where, having regard to the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that ho exercised acts of ownership upon the land and adduces evidence in support of such assertion ha cannot, where such evidence is disbelieved by the Court, turn round and rely upon any presumption.
8. Here there is no question of any such presumption upon which the plaintiff, his to rely. The question depends upon the facts found that there was no person before 1908 who exercised any act of possession on the land in dispute as against the plaintiff. When there was no one who intruded on the land before 1908, plaintiff's vendor's possession cannot be said to have been disturbed. I am therefore of opinion that the decision of the learned Judge should he reversed and the appeal allowed. But would order that the case should be sent back for the purpose of a local investigation in order to ascertain exactly the land which falls within the lease of the plaintiff. An application was made by the plaintiff before the Subordinate Judge for holding a local investigition1Bufc that was disallowed on what seems to be insufficient grounds as he held that the land could be ascertained upon oral evidence. On appeal the learned Judge was of opinion that the land could not be ascertained on oral evidence. The only course he then ought to have taken was either to order a local investigation himself or to direct the lower Court to make a local investigation and send him the result of such investigation in order to arrive at a decision on the question whether the land in the possession of defendants 1 and 2 fell within the lease of the plaintiff.
9. If the case had to be sent back I would also direct an enquiry, if the plaintiff succeeds in establishing the identity of the land in suit, as to the terms on which the plaintiff would be allowed a decree for possession hiving regard to the fact that apparently the defendants spent a considerable sum of money in order to improve the land. That matter has not been investigated in either of the Courts below. It is alleged that the question of compensation was not argued before the trial Court, because the defendants alleged that they would have their compensation from their landlord. This is also one of the questions which the Court would have to go into if the case went back for trial according to my view. On behalf of the respondents a question was raised that the document on which the plaintiff relies was not legally registered, But that question does not appear to hive been debated in the lower appellate Court. I need not discuss these questions as the appeal will be dismissed in accordance with the opinion of my learned brother.