1. This is an appeal on behalf of the plaintiffs and is directed against a decision of the First Additional District Judge of Dacca reversing that of the Fifth Munsif of Munshiganj. The trial Court gave the plaintiffs a decree in part, allowing their claim in respect of three of the disputed plots, items 1, 8 and 11 of the schedule to the plaint, and dismissing the claim as regards the rest. On appeal the lower appellate Court dismissed the suit in toto. Hence the present appeal. The plaintiffs are the rleirs of one Radhakishore Bose, and their case is that Radhakishore and his two brothers, Nabakishore and Nandakishore, were members of an undivided Hindu family. Of these, Nandakishore went away from his home on business, and an arrangement was come to at the time among the brothers by which it was agreed that during the absence of Nandakishore his share of the income of the joint properties should be enjoyed by Radhakishore and Nabakishore equally. The arrangement was to hold good as regards the heirs and successors-in-interest of the respective parties. It was alleged that this arrangement was duly observed for a considerable period, but that the heirs of Nabakishore, Nabakishore having died in the meantime, caused an entry to be made in the record of rights in the year 1916 in favour of themselves to the extent of a two-third share in the properties, Radhakishore's 8hare being shown to be one-third only. Nabakishore's heirs also purported to deal with the properties as if they were the owners of a two-third undivided share. In view of these and other acts on their part in denial of the rights which Radhakishore and his heirs claimed under the arrangement referred to above, the plaintiffs commenced the present suit, which they framed as a suit for declaration of their title to a moietye of Nandakishore's share and for confirmation, and in the alternative for recovery of possession of such moiety in the properties mentioned in the plaint, which were all claimed to be the joint properties of the family.
2. The heirs of Nandakishore were joined as defendants 8 to 13, but did not contest the suit. The contest was by defendant 1 only, who claimed to be the successor-in-interest of Nabakishore, having also obtained the interest of defendant 2, another heir of Nabakishore, under a deed of relinquishment. Certain other persons, defendants 3 to 7, were f joined as parties, as assignees from defendant 1, but they took no part in the proceedings. The main defence was a denial of the arrangement set up by the plaintiffs, and a claim of title on behalf of Nabakishore and his heirs in respect of a two-third share of the properties. It was further alleged that some of the properties were not joint properties at all, but had been acquired by Nabakishore alone with his own money. The learned Munsif refused to believe the story of the arrangement pleaded by the plaintiffs, but gave effect to an ekrarnama which was admittedly executed by and between Radhakishore and Nabakishore in the year 1285 B.s. corresponding to 1878. He found that the properties in suit were all included in the ekrarnama, and that three of them only, being items 1, 8 and 11 of the present suit, were ancestral, the rest being Nabakishore's self-acquired properties. As regards these three items of ancestral properties only, there was an arrangement under the ekrarnama on the lines of the arrangement which the plaintiffs alleged in their plaint. In other words, the agreement was that if Nandakishore or his heirs did not come back home. Nabakishore and Radhakishore or their heirs were to enjoy the income of that share equally. The plaintiffs referred to the ekrarnama in the plaint, but they made the case that it was invalid and inoperative and further that it had not been acted upon. All the same, relying on this document, the learned Munsif, as already stated, decreed the plaintiffs' claim in regard to these three items.
3. The learned Additional District Judge proceeded on a different ground. He took the view that the rights which the plaintiffs claimed under the arrangement set up by them were those of mere licensees, and pointed out that they had, in fact, described themselves as such in the plaint. Relying on a decision of the Allahabad High Court in : AIR1927All633 , Manbahal Rai v. Ram Ghulam Pandey, he accordingly held that the plaintiffs were not entitled to maintain the suit. It was stated that a license passed no interest in immovable property to the licensee, and the licensee could not, therefore, maintain an action for possession. The learned Judge further found that the suit was also barred by limitation, as the defendants had been in adverse possession of the subject-matter of the suit to the knowledge of the plaintiffs for over twelve years. It is the propriety of this decision which is challenged in the present appeal.
4. The learned Judge, in my opinion, was not quite consistent in his views. If the plaintiffs were licensees and had no interest in the properties, there could be no question of applying the bar of limitation either under Article 142 or Article 144, Limitation Act. It may be that these articles are not limited to suits for possession based on proprietary title: see : AIR1934All993 , Bindhyachal Chand v. Ram Gharib Chand, but they certainly contemplate suits for possession in which some interest in immovable property is claimed. In my opinion, these articles can have no application in a case where ex hypothesi the plaintiffs are supposed to assert no claim to any interest in immovable property and there is no denial by the defendants of any such claim. If, therefore, in the present case the plaintiffs were mere licensees, the suits could not be regarded as suits for possession in any sense of these words. It is possible, however, to regard the finding of the learned Judge on the question of possession as a finding in the alternative, and I think it should be so regarded. In other words, the position is that according to the learned Judge the plaintiffs, on their own showing, were mere licensees and on that footing they had put themselves out of Court. Assuming, however, that this was not so, the plaintiffs could yet be successfully met by the plea of dispossession or discontinuance of possession for more than twelve years.
5. Turning to the question as to whether the plaintiffs were mere licensees or not, it is a fact, as the learned Judge points out, that they described themselves in that way in the plaint, in more than one place. Although the plaint was in Bengali the word 'licensee' was added as a part of the description in English. I do not think, however, that in construing the plaint undue importance should be attached to the description which the plaintiffs thus gave of themselves. This might have been due to an exaggerated attachment on the part of their lawyer, who drew up the plaint, for the English word 'licensee.' What has got to be looked at is the substance of the case made in the plaint, and from that point of view it seems to me that the averments therein did amount to a claim of an interest in immovable property which was certainly more than that of a licensee. For one thing, it was recognised that the interest created by the arrangement which was alleged by the plaintiffs was heritable and transferable. These are not attributes of a license. By the alleged arrangement it was avowedly the object of the parties to secure to some of them the enjoyment of the rents and profits of the immovable properties dealt with by it. This certainly, in my opinion, was sufficient to create an interest in such properties in favour of the parties who were given the right to enjoy such rents and profits. It is quite true that there was no document by which this right was created, but according to the plaintiffs' case, the transaction took place before the passing of the Transfer of Property Act, and a writing was, therefore, not necessary.
6. As regards the case relied upon by the learned Judge, it will be seen from the judgment of Iqbal Ahmad J. that that was a case of a bare or naked license which was not coupled with the grant of any interest in property. In the case of such a license, the licensee will no doubt not be entitled to maintain an action for possession in his name, but I do not think this rule may be extended to a case like the present where there is definitely an interest in property created by the arrangement which is sought to be described as a license. In this view of the matter, I must hold that the learned Judge was wrong in throwing out the suit on the ground that it was not maintainable. This, therefore, invests the other point dealt with by the learned Judge with additional importance. As I have already indicated, if his finding on this point stands, that should be enough to dispose of the suit. The learned Judge expresses his conclusion in this respect in these terms:
Thus it is clear that the defendants had been in adverse possession of the subject-matter of the suit to the knowledge of the plaintiffs for over twelve years. Thus the title of the plaintiffs, if any, had been extinguished.
7. Mr. Bakshi recognises that this finding places an insuperable obstacle in his way, but he tries to get out of it in two ways. In the first place, he contends that although the right claimed by the plaintiffs in the suit is an interest in property, still there is no room for application of Article 142 or Article 144, Limitation Act. According to him, the suit cannot be treated as a suit for possession under either of these articles. I find myself unable to accept this argument. For one thing, that is not the view which Mr. Bakshi's clients themselves took of the matter in their plaint. The suits were described and tried out on the basis of their being suits for possession. Secondly, I do not see how a suit to assert a right to enjoy rents and profits of immovable property can be distinguished from a suit for possession within the meaning of the articles referred to. Quite definitely, the suit was not merely one to enforce the arrangement in question, as if it was nothing more than a contract merely creating personal obligations between the parties. The claim that was put forward and litigated was a claim to an interest in the disputed properties by virtue of which it was said the plaintiffs would be entitled to enjoy a definite share of the usufruct. I do not think, therefore, that there is any substance in Mr. Bakshi's contention in this behalf.
8. Secondly, it was urged by him that the finding was contrary to the case of the defendants. I was not quite able to appreciate what Mr. Bakshi meant by this. If he meant to say that no case of adverse possession had been made in the pleadings or in the issues, all that need be pointed out in answer is that for the purpose of dismissing the suit it would be quite enough to show that the plaintiffs themselves were not in possession of the right claimed for the statutory period. On the facts of the case, the Court need not have come to the further finding that possession was actually with the defendants, so long as it found that the plaintiffs were out of possession themselves for the requisite length of time. Mr. Bakshi's next contention was that the finding such as it was had been arrived at without taking all the evidence into consideration. Reference was made in particular to one important matter which it was said the learned Munsif had specifically noticed in his judgment, but the learned Judge in the Court of appeal below overlooked. This was a Rent Suit No. 652 of 1933 in which the heirs of Nabakishore were supposed to have advanced a claim to two-thirds of the properties in proprietary right as against the plaintiffs. In my opinion, there is no merit in this objection. In the first place, there was no decision in the suit on the question of title a or of possession. In fact, the question of share was expressly left undecided and a joint decree for rent passed. That did not take away from the fact that the defendants in that suit had definitely asserted a claim in denial of the plaintiffs' right under the arrangement. Secondly, it will be seen that if there had already been a hostile assertion by the heirs of Nabakishore of a right in denial of that of the plaintiffs, this rent suit could not possibly have the effect of interrupting the operation of limitation. Taking all the facts and circumstances into consideration, I am not prepared, therefore, to f hold that the finding of the learned Additional District Judge on the question of possession is one with which I can interfere in second appeal. If that finding stands, that should by itself be enough to dispose of the plaintiffs' claim.
9. The appeal must consequently fail, but as regards one of the plots, namely, item 8 of the schedule, the contesting defendants in their pleading admitted title and possession in the plaintiffs to the extent of the share claimed by them. There is no reason, therefore, why there should not be a decree in respect of this property. So far as this item g is concerned, the ekrarnama itself recognised that it was subject to the same arrangement which the plaintiffs had set up in their plaint. Subject to this variation, therefore, thn anneal is dismissed with costs.