1. The suit which has given, rise to this appeal was for a declaration of the plaintiff's title to and for recovery of possession of 6.38 acres of land which originally formed part of a tenancy under a tenure held by certain Roys of Pathrail. The tenure, had been purchased by the plaintiff in a. certificate sale, and his case was that he had obtained khas possession of the lands, thereof, but had been subsequently ousted-by the defendants from the disputed plot. The learned Munsiff decreed the plaintiff's claim for a declaration of title, but dismissed his claim for khas possession. Upon an appeal by the plaintiff the learned Subordinate Judge granted him a decree for khas possession, and it is against that order that the defendants have appealed. For a proper appreciation of the questions involved, it is necessary to set out certain admitted incidents in relation to the tenure and the plot comprised therein which is the subject of dispute.
2. The plaintiff acquired the tenure in a certificate sale on 1st September 1925, and the sale was confirmed on 5th October 1925. Possession was delivered on 8th December 1925, and the plaintiff's case was that the lands not being in the possession of any tenants under the Roys but in the khas possession of the Roys themselves, what he obtained was not symbolic but khas possession. This was denied by the defendants-who maintained that they had been in possession as tenants under the Roys and had continued in possession ever since. The plaintiff's case further was that the defendants were never in possession until 1929,. in which year they ousted him after several previous unsuccessful attempts. To return to the admitted facts : In 1925 the plaintiff took proceedings to get his name mutated in the Land Registration Records, and this was opposed by the defendants, but the Collector, holding that they could not maintain their objections in view of the plaintiff's purchase of the interest of the Roys, allowed the mutation on 21st May 1926. On 20th December 1926, the plaintiff moved the Criminal Court for an order on the defendants under Section 107, Criminal P.C., alleging that the defendants had tried to dispossess him by sowing kalai in the previous April, and that they were again attempting to trespass on the land and dispossess him. This application was dismisssed on 12th April 1927. Thereafter, the plaintiff made a complaint of theft against the defendants in respect of paddy which he stated he had raised on 10 bighas of this land, and which the defendants had taken away. This complaint was dismissed on 9th March 1928, and the Magistrate's judgment contains the following observation:
The defence claim the disputed land as theirs from times long ago and admit they have cut away the crops as they grew it. The plot 1594 (the present disputed plot) was the land of the Pathrail landlords - Pathrail Roys, but it was possessed by the tenants, viz. the accused who took settlement from those landlords and are still paying rents. The delivery of possession in the certificate sale seems to be a symbolic one, for the accused are not people who will relinquish their long possession, as they have got bona fide right and possession too.
3. As stated before, it was the plaintiff's case that the defendants eventually succeeded in dispossessing him in the following year, that is 1929. The plaintiff again prosecuted the defendants upon the allegation that they had taken away kalai from the land, and this case was finally disposed of by an appellate judgment of the learned Sessions Judge, dated 23rd May 1929 in which he held that the evidence did not establish that Tomizuddin (the plaintiff) was in possession of the land. Another criminal case instituted on 10th September 1929 failed on 25th October 1929. In 1932, there was a suit in which it would appear that the pro forma defendant in the present suit professing to be a cosharer in the superior tauzi sought to eject the plaintiff. This suit terminated in a compromise decree by which the pro forma defendant obtained a one-third share in the lands which were the subject-matter of that suit. Subsequently, a document purporting to be a partition deed was executed by the terms of which the entire plot now in dispute was allotted to the plaintiff.
4. The defendants contended that they were in possession of the land as occupancy raiyats from the time of the Roys, and pleaded limitation as a bar to the suit. The learned Munsif held that the plaintiff's case being that he obtained khas possession in 1925 and remained in possession until dispossessed by the defendants in 1929, the suit as brought fell within Article 142 of Schedule 1, Limitation Act which prescribes 12 years as the period of limitation for a suit 'for possession of immovable property when the plaintiff, while in possession has been dispossessed....' Upon a consideration of the evidence both documentary and oral, the learned Munsif found himself unable to accept the story that the plaintiff had ever obtained khas possession. The learned Munsif arrived at the following conclusions: Firstly there was hardly any evidence to show that the Pathrail Roys had khas possession, and the evidence adduced by the defendants showed that they were in possession for more than 12 years before the suit. Secondly, as the plaintiff did not admit that the defendants were tenants, the plaintiff's suit was, on the facts proved, barred under Article 137 of Schedule I, Limitation Act, which prescribes 12 years as the period of limitation for a suit 'by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale' and which makes the starting point of limitation to be the date 'when the judgment-debtor is first entitled to possession.' Thirdly, as the defendants claimed to have held the lands not adversely to the Roys but only as tenants, Section 28, Limitation Act would not operate to extinguish the plaintiff's right to the land, and what was time barred was the plaintiff's claim to khas possession.
5. Fourthly even if the defendants were not originally tenants by virtue of grant, they had at least at the date of the suit acquired tenancy right by continuous possession for over 12 years. On appeal the plaintiff's title does not appear to have been disputed and the learned Subordinate Judge expressed the matter thus:
The position that was maintained by the respondents was that they were tenants under the Boys of Pathrail and alternatively that they acquired the tenancy right by adverse possession against the Boys. The onus of proving both the cases is on the respondents and it is to be seen how far this onus has been discharged from the evidence of the parties.
6. The learned Subordinate Judge then referred to the finally published Record of Eights which showed that the disputed plot was recorded as being in the khas possession of the Roys, and to certain dakhilas produced by the defendants. As regards these he held, that with the exception of one of them Ex. C/17 of the year 1307 B.S., the others which purported to show payments of rent from the year 1304 to 1329 B.S. were not proved to relate to the disputed plot. Regarding Ex. C/17 he held that a solitary dakhila was insufficient to rebut the presumption of correctness attaching to the Record of Rights.
7. The learned Judge then proceeded to consider the question of adverse possession which he discussed in the following language:
The next question is whether they were in adverse possession for more than 12 years as against the Roys and thus acquired the status of tenants. The plaintiff's purchase took place on 1st September 1925 and the present suit was instituted on 29th May 1935 and that was within time. Now it is to be seen if the respondents were in possession adversely against the Roys from before the institution of the suit.
8. The learned Judge then adverted briefly to the criminal cases which the plaintiff had instituted and went on to observe as follows:
At best it may be said that the respondents asserted their possession in 1926 and not before in the absence of any evidence. Even putting the most liberal interpretation on these documents in favour of the respondents it does not cover the period of 12 years. Moreover, there is no evidence to show that this possession was adverse to the knowledge of the Roys of Pathrail. Prom this evidence I am unable to find that the respondents acquired any right by adverse possession as claimed by them. The point is found against the respondents and it is found that they are no tenants of the disputed land and are liable to be evicted.
9. Here I may pause to indicate what is a circumstance of some importance, and that is that there is no finding by the lower Appellate Court that the plaintiff obtained khas possession in 1925 or for that matter at any time and that he was ousted from the land as alleged by him in the year 1929.
10. The following contentions have been advanced before me on behalf of the appellants. The onus of proving that his suit was within time was on the plaintiff. The learned Munsiff found that the plaintiff had failed to show that his suit was within time, and this finding has not been set aside. On the other hand, the learned Subordinate Judge has erroneously placed on the defendants the onus of proving that they were either tenants under the Roys or alternatively that they have acquired tenancy right by adverse possession. Reliance was placed on Dino Monee Debia v. Durga Purshad Majoomdar (1874) 21 WR 70 in which it was held that in a suit for possession of land brought against a tenant who is really a trespasser, the defendant merely by alleging tenancy in his written statement, does not preclude himself from setting up the defence of the law of limitation. The appellant's advocate also invoked Section 3, Limitation Act, and relied upon Mohim Chunder Mozoomdar v. Mohesh Chunder Neogi (1889) 16 Cal. 473. In that case it was laid down that it is not the law that where plaintiffs are shown to be the rightful owners of the land in suit, it is for the ryot defendants to show that they are entitled to retain possession: It was held on the evidence in that case that the onus was thrown on the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within 12 years before the commencement of the suit. The appellant's advocate further contended that in the lower Appellate Court the defendants must not be deemed to have surrendered the position created by the finding that the suit was time-barred which was a finding in their favour.
11. Apart from the question of limitation two other points were taken by the learned advocate for the appellant: (1) The evidence afforded by the records of the criminal cases is relevant and taken with the other evidence lends strong support to the view that the defendants have been in possession for over 12 years before suit. The Munsif has considered these materials but the Subordinate Judge has failed to attach to them the importance they deserve. (2) The dakhila Ex. C-17 not having been found to be otherwise than genuine the Subordinate Judge should have held that it rebutted the presumption of correctness attaching to the Record of Rights. In my judgment effect must be given to these contentions.
12. On behalf of the respondent it has been argued that the learned Subordinate Judge was not called upon to set aside the finding that the suit was time-barred, because even if the learned Munsif purported to record such a finding his ultimate decision stultifies it. He has given the plaintiff a decree declaring his title, which he could not have done if the suit was time barred for, in that event he would have had to hold that the plaintiff's rights were extinguished under Section 28, Limitation Act. In my judgment the failure of the learned Munsif to appreciate the true effect of Section 28 of the Act did not absolve the lower Appellate Court from considering the question of limitation.
13. The plaintiff came to Court with a definite story that he obtained possession in 1925 and was dispossessed by the defendants in 1929. That story was disbelieved by the learned Munsif who held that the plaintiff did not acquire khas possession in 1925 and that the defendants were in possession for many years prior to 1925. Upon this finding the plaintiff's claim was time-barred. The subordinate Judge has not considered whether the plaintiff's case that he obtained khas possession in 1925 and was dispossessed in 1929 has been established. He has recorded no findings on these questions. Further, instead of considering whether the plaintiff has discharged the onus of proving' that he and his predecessors were in khas possession within 12 years prior to the institution of the suit, he has held that the defendants have failed to prove tenancy right by adverse possession for 12 years. The entire evidence, including the findings in the criminal cases, and the dakhila Ex. C-17, should be considered from the point of view that the onus lies on the plaintiff to prove that his suit was within time. The decree passed by the learned Subordinate Judge is set aside and the matter is remanded to the lower Appellate Court for a re-hearing of the appeal in the light of the observations above made. The appellant is entitled to his costs in this Court. The hearing fee is assessed at two gold mohurs.