1. In this case the Lower Appellate Court has differed from the first Court in holding that the suit is barred by limitation, and we have to decide whether the District Judge was right or wrong.
2. The suit was brought to eject the defendants from a 2 annas, 8 gundahs share of a certain mouzah, and to obtain from them mesne profits in respect thereof. Plaintiff's predecessor in title acquired the share in question of the whole mouzah Rampore Balwa, of which the mouzah now in question is a 'dakhili,' by purchase at a sale held in execution of his own decree against his debtor, Het Narain Singh, and obtained formal possession through the Court on the 30th of September 1874.
3. In December 1874, Het Narain Singh, together with all his co-sharers in the mouzah, granted a perpetual mouroosi ticca of their 'dakhili' to the defendant No. 2, reserving the almost nominal rent of Rs. 25 per annum.
4. Subsequently the plaintiff's predecessor brought a suit against all the maliks, including Het Narain, whose right had been sold to him, on the allegation that they had dispossessed him; and after his death the plaintiff recovered a decree for the 2 annas 8 gundhas share which had been Het Narain's on the 31st of March 1881. In March 1882 he obtained formal possession in execution of that decree.
5. On the 29th of January 1887, defendant No. 1 having purchased at a sale in execution of a decree against defendant No. 2, the right of the latter as ticcadar, obtained formal possession of the same through the Court.
6. Plaintiff complains that he was then dispossessed of the 2 annas 8 gundahs share belonging to him; and he instituted this suit to recover it in December 1887-13 years after the grant of the ticca by Het Narain to the defendant No. 2.
7. The first Court was of opinion that the ticcadar's possession was not adverse to the plaintiff; and that he does not claim any right adverse to the plaintiff. That Court further held that the formal possession obtained by the plaintiff of the share now in dispute in 1882 was possession not only as against the defendants in that suit, but as against the ticcadar also who claims through one of those defendants, and that such delivery of possession saves this suit from limitation, even if the ticcadar's possession was adverse.
8. The Appellate Court, on the contrary, held that the ticcadar's possession was adverse to the plaintiff's right and that it had been held 'all these years', and therefore was sufficient to bar this suit under Article 144 of the schedule to the Limitation Act.
9. My opinion is that the District Judge's decision is correct; and that although the ticcadar originally acquired no right whatever to that share of the mouzah which had, before the sale in 1874, belonged to Het Narain Singh, yet his possession immediately became adverse to the plaintiff; and that the latter cannot as against the ticcadar take any benefit from the formal possession obtained in execution of the decree of March 1881 to which the ticcadar was no party. The plaintiff himself has repudiated any relation of landlord and tenant as between himself and the defendant, and by his suit declares the possession of the latter to be adverse to his rights; and if that possession had been enforced for more than 12 years before this suit was brought, I do not see how the plaintiff can get rid of the bar of limitation. It might be more easy to do so if the ticcadar in question was a mere lessee of Het Narain Singh, and if there purported to exist any reversionary right in the latter. It might in such case be argued that the symbolical possession obtained by the plaintiff as against Het Narain in 1882 was equally effective as against one setting up to be his tenant or his ijaradar, and in possession on his account. But here the ticca purports to be a perpetual estate, with no reversion to the grantors, and no right reserved to them but the nominal rent of Rs. 25 per annum amongst them all. The Full Bench decisions--Juggobundhu Mukerji v. Ram Chunder Bysack I.L.R. 5 Cal. 584; 5 C.L.R. 548 and Juggobundhu Mitter v. Purnanund Gossami I.L.R. 16 Cal. 530--cited for the appellant do not, in my opinion, govern the present case, in which, as I think, the defendant has been in adverse possession for more than 12 years before suit, and not on behalf of the party against whom the plaintiff obtained a decree in 1881 and got symbolical possession in execution of that decree. In the case of Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee I.L.R. 4 Cal. 327 this Court pointed out the distinction as regards a plea of limitation between a person holding as tenant for a term under a party in wrongful possession, and one holding as owner and not as lessee on the term of paying a fixed sum annually to the former owner, although what he pays is called rent. And that distinction is one which I think must tell in favour of the defendant in the present suit.
10. The Privy Council decisions cited for the appellant--Ram Chunder Singh v. Madho Kumari I.L.R. 12 Cal. 484 and Tekaetnee Goura Coomaree v. Saroo Coomaree 19 W.R. 253--do not seem to me to be applicable to this case. Those cases only show that a tenant cannot plead limitation in a contest with his landlord in respect of an adverse right as a perpetual tenure-holder except from the date when the landlord has had notice of such adverse claim. And this ruling does not further the plaintiff's case before us. I am of opinion that the defendant is entitled to raise the plea of limitation, and that the Lower Appellate Court has properly found that the possession was always adverse to the plaintiff, and I would accordingly dismiss this appeal with costs.