B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and it arise out of a suit commenced by him to recover khas possession of a plot of land measuring about 5 cottas on establishment of his title to the same. The disputed land, according to the plaintiff, appertains to C.S. plot No. 149 recorded in Khatian No. 58 of Mouza Gopegram. C.S. Plot No. 149 along with Plot No. 150 were comprised in a tenancy held by one Nagendra Nath Sen under pro forma defendant A Kiran Chandra Chakravarti at an annual rental of Rs. 10 and odd annas. Nagendra enjoyed the land of C.S. Dag No. 149 in khas while Dag No. 150 was sublet by, him to the plaintiff and two other persons. In 1935, Nagendra surrendered the tenancy to his landlord Kiran with the previous consent of the sub tenants under Section 86, Ben. Ten. Act, and on 22nd July 1936, the plaintiff took settlement of both the plots of land from Kiran at a rental of Rs. 9 and odd annas a year. The plaintiff avers that on 7th March 1938, defendants 1 and 2 who occupied a contiguous property dispossessed the plaintiff from the disputed strip of land by erecting a hut on the same. This led to the institution of the present suit. The defence of defendants 1 and 2 was substantially of a twofold character. The first and the main contention was that the land in suit did not appertain to C.S. Dag No. 149, but was a part of Plot No. 145 which belonged to the defendants. Alternatively, it was contended that the defendants acquired a good title to the property by adverse possession.
2. The trial Court negatived both the pleas and decreed the plaintiff's suit. On appeal, the judgment was reversed. The learned District Judge who heard the appeal concurred with the trial Court in holding that the land in suit did appertain to plot No. 149 as alleged by the plaintiff, and not to C.S. Plot No. 145, but he dismissed the plaintiff's suit on the ground that the plaintiff's title was extinguished by adverse possession of the defendants which commenced from 1925. It is the propriety of, this decision that has been challenged before us in this appeal. The controversy, so far as this appeal is concerned, centres round one short point. We are bound to accept the finding recorded by the lower appellate Court that defendants 1 and 2 were in possession of the property since 1925. The only question for our determination is as to when the possession of the defendants became adverse to the plaintiff.
3. The contention raised on behalf of the plaintiff-appellant is that at the time when the defendants encroached upon the disputed property, it was in possession of Nagendra as a tenant under the pro forma defendant 4. That possession, though it might be adverse against Nagendra could not be adverse against the superior landlord till the holding was surrendered by Nagendra in 1935. As against the plaintiff, who derived his title from pro forma defendant 4, limitation would begin to run from 1935, and as twelve years had not yet run out, the plaintiff's suit, it is said, was not barred by limitation. Now, it cannot be disputed as a general proposition of law, that adverse possession against the tenant is not adverse against the landlord during the continuance of the lease. As long as the lease subsists, time does not run in favour of a third party who has dispossessed the lessee where the lessor had no immediate right of possession. The lessor's right to sue accrues only if the rent received by him is intercepted by the trespasser: vide, Davies v. Kazee Abdool ('67) 8 W.R. 55, Woomesh Chunder v. Raj Narain Roy ('68) 10 W.R. 15, Gunga Kumar Hitter v. Ashutosh Gossami ('96) 23 Cal. 863 and Hajra Sardara v. Kunja Behari Nag 5 A.I.R. 1918 Cal. 584.
4. The lower appellate Court has held that this general proposition of law is not applicable to a ease like this where the tenancy is surrendered by the lessee. In such cases, it is said, the lessor gets only an assignment of the lease, and as he steps into the shoes of the lessee, he is bound by his acts and omissions, and adverse possession, therefore, which had already commenced against the lessee would continue against the lessor even after surrender. In support of this proposition, the lower appellate Court placed reliance upon the decision of a Division Bench of this Court in Gobinda Nath Saha v. Surja Kanta ('99) 26 Cal. 460. In that case, it was held that where a putni was relinquished by the putnidar in favour of the zamindar, it could not give the latter a fresh cause of action against a third party who had trespassed upon the land of the putnidar, and the latter's adverse possession of such lands against the putnidar was also adverse to the zamindar. In our opinion, this position can and is to be supported upon the express provision of Section 12 of the Patni Regulation to which reference was made by the learned Judges in their judgment and which declares that a surrender or relinquishment by a putni talukdar in favour of a zemindar operates only as transfer of the tenure in the estate in which it may be hold at the time, and the surrenderee succeeds to nothing more than the reserved rights of the former tenant such as they may be, subject, of course, to any restriction put upon the tenure by his act.
5. It appears that an argument was raised on behalf of the zemindar in this case that it would be very much prejudicial to his rights if he was held to be affected by adverse possession before he became entitled to possession himself. To that the answer of the learned Judges given in the judgment is that the zemindar is not bound to accept any relinquishment by the putnidar. When an offer of surrender is made by the putnidar and the zemindar finds that a trespasser is holding adverse possession of any land included in the permanent tenure, he can always refuse to accept the relinquishment. This might be true of a putni tenure under the law as it then stood, but under Section 86, Ben. Ten. Act, which governs a raiyati holding, landlord's consent is not necessary to validate a transfer except where there are under leases in the land. The landlord, therefore, has no option to refuse to accept a surrender made by the tenant, and it would certainly affect his interest very much if he is held to be bound by adverse possession against his tenant. We think that with regard to other leases in respect to which there is no statutory provision of the nature laid down in Section 12 of the Putni Regulation, it must be held that a surrender of a lease operates as a determination or extinction of the tenancy and not a mere transfer of the outstanding term of the tenure.
6. Under Section 111, T.P. Act, a surrender, either express or implied, determines the lease. The section lays down that surrender would not prejudice the interest of certain under leases which were created by the lessee previous to surrender, but it does not say that it would not affect the right of any trespasser who is in occupation of the demised premises. Section 86 (6), Ben. Ten, Act, to which reference has been made by the learned Advocate for the respondent also does not really alter the position. It does not certainly lay down that in case of a surrender of a raiyati holding, the landlord merely steps into the shoes of the tenant and succeeds to all his rights and liabilities as they existed at the date of surrender. If there are under lessees on the land, their consent will certainly have to be taken; otherwise, the surrender would not be valid. But nothing is said as regards the rights of trespassers.
7. It has been held in England that a surrender of the lease by the lessee if he has been dispossessed by a trespasser gives the lessor the immediate right to sue for possession: vide Ecclesiastical Commrs. of England v. Treemer (1893) 1 Ch. 166 at p. 176; and also the judgment of Lord Selborne L.C. in Ecclesiastical Commrs. of England v. Treemer (1893) 1 Ch. 166, Wales v, James Rowe (1880) 5 A.C. 736. In our opinion, unless there is something to the contrary laid down in a particular enactment, the general principle which has been accepted in a long series of decisions of this Court from the pronouncement of Sir Barnes Peacock downwards and affirmed by the Judicial Committee in Katyani Devi v. Uday Kumar Das should be followed. To hold otherwise would be to violate the well established proposition of law that prescription does not run against a party who is unable to act. The result, therefore, is that we allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. The plaintiff will get his costs from the defendants in all the Courts.
8. I agree.