Brett and Pargiten, JJ.
1. The plaintiff in the action out of which this appeal arises, claims to be the tenant under the Maharaja of Tipperah of 40 drones and odd of land in mouzah Sydabad which was originally bil land, and some of which is now under cultivation, but the rest is waste. The kabuliat executed by the plaintiff bears date the 9th Assar 1306 (Tipperah) which is equivalent to 1896-97. The defendants are the holders of several taluks in the Village, and it is said that they tried to obtain a settlement of the bil lands from the Maharaja and to have them included in their taluk, but failing to do so they commenced to cultivate the lands from Kartick to Poush 1306 (Tipperah), and resisted the plaintiff, when he attempted to obtain possession under his lease. He accordingly brought this suit to recover possession of these lands after declaration of his title.
2. According to the plaintiff's case the lands in suit formed originally a part of the lakhiraj property of Mir Buddhan and others in mouzah Sydabad, which was measured and resumed by Government in 1837. The estate was then settled as a permanent kaimi hazuri kharija taluk with the ex-lakhirajdars. The estate was subsequently put up for sale at auction for arrears of revenue, and was purchased by the predecessor in title of the present pro forma defendant the Maharaja of Tipperah. The settlement with plaintiff was made by the father of the present Maharaja. The defendants' predecessors held taluks which comprised the whole of the cultivated land in the estate, but the waste or bil land remained in the khas possession of the Maharaja.
3. The defendants denied the title of the plaintiff to the lands in suit. They alleged that the Government, after the resumption proceedings, settled the cultivated lands only with the ex-lakhirajdars, and that the settlement only gave the settlement-holders the right to realize the rent from the talukdars for the cultivated lands held by them separately as their taluks. The bil land was never included in the resumed estate, but was held all along jointly by the talukdars. They had been in possession all along by cultivating a portion and by grazing cattle and cutting grass from the rest. They allege that in 1282 B.S. when a portion of the land was taken up for the Brahmanbaria road, the Maharaja expressly disclaimed all title to it as his khas land, and that a title which plaintiff's uterine brother Mouraj Jana Chowdhry then set up to the land as included in a taluk granted to his mother, was, eventually held to be invalid and false. Having failed in that claim and in other attempts to obtain possession of the lands, the plaintiff took the fraudulent and collusive lease under which he now brings the present suit.
4. They contended that the suit was barred by limitation, as they had been in adverse possession of the lands in suit for more than 12 years before suit, and the plaintiff and his lessor had never been in possession.
5. The Court of first instance gave the plaintiff a decree to the full extent of his claim. The Subordinate Judge held that the lands in suit were part of the original lakhiraj property, that they were also a part of the property, which was resumed by the Government and settled with the ex-lakhirajdars, that the defendants as talukdars were in possession only of specified lands in the estate as shown in the measurement papers prepared at the time of the resumption, that the bil land was not included in their taluk, that the defendants as talukdars under the zamindar had encroached on the land of the zamindar, but that they had not thereby acquired a title by adverse possession against him, that the lands had been settled with the plaintiff as alleged, and that the plaintiff had a good title, and was therefore entitled to obtain possession.
6. The defendants appealed in two appeals. Both appeals were decreed by the Appellate Court and it was ordered that the suit of the plaintiff be dismissed with costs. Plaintiff has appealed to this Court.
7. The learned District Judge in deciding the appeals has first held that the case of the defendants is untrue that all the bil lands remained in their joint possession, that the resumed estate only covered the cultivated land, or that the landlord had no right to the bil land. Secondly, he has held that the bil lands do not form part of the original taluks. But, thirdly, he has come to the conclusion that the defendants have established rights as against the landlord and his lessee by proving adverse possession for more than 12 years, in fact since 1844, of the lands in, dispute; and on that ground he has held that the plaintiff has failed to prove his title and he has dismissed the suit.
8. In this appeal the last conclusion has been assailed on the, ground that the facts which the Judge has found are not sufficient in law to support the inference, which he has drawn, that the defendants have established a title by adverse possession.
9. The land in suit was measured by an ameen and the greater portion was found to be under cultivation, but the Judge has accepted the evidence of the witness Babu Moni Lal Roy, to prove that all of the cultivated lands with the exception of plots 32 and 33 have been brought under cultivation since 1896.. Plots 32 and 33 were brought into cultivation earlier, but the Judge finds that they were not included in the taluks as existing in 1844, and that they have been brought under cultivation but not as part of the taluks. In fact, the Judge appears to confirm the finding of the Subordinate Judge that in cultivating these lands the talukdars encroached on the waste land of the estate, which belonged to their landlord.
10. In support of the appeal it is first contended that by encroaching on the lands of their landlord the defendant could not have acquired any title to those lands by adverse possession against their landlord, and in support of this contention reliance is placed on the decisions of this Court in Nuddyar Chand Shaha v. Meajan (1884) I.L.R. 10 Calc. 820, and Prohlad Teor v. Kedar Nath Bose(1897) I.L.R. 25 Calc. 302
11. The defendants' case was that, if lands in suit were outside the landlord's estate, they had acquired a title by adverse possession against the landlord; and, if they were within the estate, then they formed part of their taluks. The Judge has, however, found that the lands are included in the landlord's estate mouzah Sydabad, while the decision in Nuddyar Chand Shaha v. Meajan (1884) I.L.R. 10 Calc. 820 is sufficient authority for holding that in the latter of the two alternatives relied on by the defence, the defendants could not set up adverse possession against the landlord. A third alternative has been suggested, viz., that even if the lands are included in the landlord's estate, the defendants have acquired a title by adverse possession. As to this we have to observe that it is only from their position as talukdars under the landlord that the defendants have been able to make the encroachments on the waste lands of the landlord, and therefore their possession of the lands encroached upon could only commence to be adverse when a title adverse to the landlord was asserted or the landlord became aware of the encroachment. There is no evidence to prove either that the defendant ever asserted a title adverse To the landlord, or that in this instance the landlord became aware of the encroachments prior to the grant of the lease to the plaintiff and to the resistance offered by defendants to his taking possession. We do not think that the case of Maidin Saiba v. Nagapa (1882) I.L.R. 7 Bom. 96 relied on by the respondents has any application to the present case. Nor does the ruling of the Full Bench of this Court in the case of Dino Money Dabea v. Doorga Persad Mozoomdar (1873) I.L.R.F.B. 274 : 21 W.R. 70 which is also quoted by the respondents in support of their defence appear to us to assist them, having regard to the circumstances of this case.
12. It has, however, been contended on behalf of the defendants respondents that the case of Prohlad Teor v. Kedar Nath Bose (1897) I.L.R. 25 Calc. 302 supports the view that, in encroaching on the lands of the landlord, the defendants were in the first instance wrong-doers, and such being the case adverse possession would commence to run from the date of the encroachment, and it would not be necessary that any title should have been asserted or that the landlord should have knowledge of the encroachment. We are unable to agree that that decision can be regarded as going so far as this, or as supporting the view that, when a tenure-holder surreptitiously encroaches on the land of his landlord in the same estate, limitation can commence to run against the landlord before the time, when the landlord becomes aware of the encroachments, simply because the encroachment was in the first instance a wrong. To hold such to be the case would be to offer a premium to wrong-doers.
13. We are unable therefore to agree with the finding of the District Judge that a title by adverse possession in respect of plots 32 and 33 was made out by the defendants.
14. The possession of the rest of the land which the defendants set up as adverse to the landlord and as having created in them a valid title against their landlord consists in their having grazed their cattle on the waste land and out and disposed of the grass. These acts the learned pleader for the appellant contends cannot be regarded as constituting possession. Quoting from Pollock in his Treatise on Possession, p. 85, he contends that 'to constitute dispossession there must in every case be positive acts which can be referred only to the intention of obtaining exclusive control,' and he also relies on the case of Leigh v. Jack (1879) L.R. 5 Ex. D 264 as laying down the principle that 'acts of user committed upon land which do not interfere and are consistent with the purpose to which the owner intends to devote it, do not amount to dispossession.' He further contends on the authority of the case of Mohini Mohan Roy v. Promoda Nath Roy (1896) I.L.R. 24 Calc. 256 that the occupation by a wrong-doer of a portion of the land only cannot be held to constitute constructive possession of the whole; that promiscuous acts at different times by a wrong fluctuating body of persons, as in this case by the talukdars and neighbouring villagers in grazing their cattle on the waste lands, are not sufficient to amount to adverse possession: Lutchmeeput Singh v. Sadaulla Nushyo (1882) I.L.R. 9 Calc. 698: that constructive possession in favour of a wrong-doer cannot be implied so as to enable him to obtain thereby a title by limitation; Secretary of State for India v. Krishna Moni Gupta (1902) I.L.R. 29 Calc. 518 L.R. 29 I.A. 104; and lastly that possession must be adequate in continuity, publicity and extent, to show that it is possession adverse to the competitor: Radha Moni Debi v. Collector of Khulna (1900) I.L.R. 27 Calc. 943 : I.L.R. 27 I.A. 136 : 4 C.W.N. 597.
15. These contentions are in our opinion sound and must prevail. The only acts of possession over the bil. land, which, the learned District Judge has found were exercised by the defendants, were that they grazed cattle in the dry season and out grass there. It is true that an assertion was made that they also sold the grass, but as to this the District Judge says there was no evidence. It was found, too, that the men of neighbouring villages also out grass in the bil, and the Judge has assumed, without any evidence to support the assumption, that this was done, with the consent of the talukdars.
16. No doubt, the contention advanced on behalf of the respondents is correct, that the act a indicative of possession must vary according to the nature of the property over which possession is exercised, Watson v. Government (1865) B.L.R. sup. Vol. 182 : 3 W.R. 73; and in the case of bil or waste lands, the cutting of grass and grazing of cattle would be the ordinary acts by which possession would be asserted. But in a case like the present, where the acts are being done by persons on the waste lands of their landlords, the principle can only apply, if the acts done were such as to amount to an assertion of possession adverse to the landlords, and were not acts which presumably were done with his permission or consent. In the present case we are of opinion that the acts which are relied on as evidence of adverse possession are infact such as would ordinarily be done on waste lands of the landlord without any objection being raised and were in fact acts presumably done with his permission and cannot be held to amount to adverse possession. The principles relied on by the learned Counsel for the appellant fully apply to the present case. We are unable to hold that the acts done at different times by a fluctuating body of persona, from the village of Sydabad and neighbouring villages were positive acts done with the intention of obtaining exclusive control over the lands, or that the acts were in any way inconsistent with the purpose to which the Landlord attended to devote the land. It is admitted on behalf of the respondents that their acts were wrongful, and they do not appear to have ever exercised acts of possession over the whole of the bil lands. Their possession cannot therefore be held to be constructive possession of the whole, and it was not in our opinion adequate in continuity, publicity, or extent so as to constitute adverse possession against the landlord. We are unable therefore to support the finding of the District Judge that the defendant had made out a title by adverse possession. We hold that on the facts which he has found the inference which he has drawn that they amounted in law to adverse possession is wrong, and we therefore set aside his judgment and decree and restore the judgment and decree of the Subordinate Judge The appeal is decreed with costs.