1. This is an appeal in an action in ejectment. As regards some of the facts, there can be no doubt. The only matter which is in dispute between the parties is as regards possession from 1882 up to the admitted date of dispossession in 1894. The land, a half of which is in dispute between the parties, is the dried bed of a river called How lie which adjoins the asli mehal called Dihi Nagorebaker and others. The chur itself was called chur Ramnagore. It was along with the asli, mehal at one time the property of Gopal Chunder Ghose, Jadu Nath and Keshab. Gopal Chunder had an eight-anna share and Jadu Nath and Keshab had the other eight annas. When the chur appeared on account of the recession of the river, it was taken possession of by Government. It is alleged that the Government took possession in or about the year 1879. The Government claimed it as the bed of a river and not reformation in site of, or accretion to, the village held by Gopal and his co-sharers. The Government made two settlements. One of these settlements lasted from 1882 to 1891 and the other from 1892 to 1902. But, before the expiry of the second settlement, events took place which prevented its full operation. When the first settlement was in force, a lease was given by two persons of the name of Girija Prosanna and Rajani Sundari to the first defendant in this suit. They were the lessees under one of the proprietors. The lease is dated the 28th September 1882, and it recited that the demised premises were an eight annas share of the mehal deducting the land in the bed of the dried up river Howlia, which was then under settlement by Government. It is clear, therefore, from the lease that the land of which possession had been taken, or had been attempted to be taken, by the Government, was excluded from the lease. That is the land which is in dispute in the present case.
2. The son of Gopal Ghose who was one of the proprietors instituted a suit against the Government for recovery of a half share of the chur. The suit was decreed on the 31st January 1891 and the plaintiffs took actual possession by enforcing the decree on the 9th May 1892. It appears from the finding arrived at by the lower Appellate Court that the possession taken was actual, and not merely symbolical. After the delivery of possession in respect to this half share Jadu Nath and Keshab served a notice on the Government with respect to the possession of the other half share. The notice was not followed up by a suit. The matter was compromised and, on the 15th December 1892, the Government gave up possession in favour of Jadu Nath and Kashab.
3. Before, however, these transactions took place and, in fact, before the re-appearance of the land which was the subject-matter of the dispute between the proprietors and the Government, Girija Prosanna and Rajani Sundari had obtained a lease of the other half share from the proprietors or their lessees. This lease is dated the 30th July 1878. The plaintiffs Nos. 1 and 2 are sub-lessees in respect to this share and their sub-lease is dated the 4th March 1895.
4. It has been found, on these facts and on a comparison of the maps, that the defendants had no right of possession to chur Ramnagore and that the title of the contesting defendant, so far as it is based on the lease in his favour, dated the 28th September, 1882, must fail. This finding was arrived at by the learned Subordinate Judge and was evidently accepted by the learned District Judge.
5. The learned District Judge, however, decided the case mainly on the question of limitation, and it will be necessary for the lower appellate Court, on the remand which we propose to make, to consider the question of title raised by one of the issues in the case, namely, whether the land is included within the silted up bed of the river Howlia within survey boundary of mouzah Ramnagore, or whether it is included within the defendant's mourusi.
6. The defendant No. 1 although a lessee under Girija Prosanna and Rajani Sundari with respect to the adjoining asli land, raised in the alternative the plea of limitation. The lower appellate Court dissented from the first. Court as regards the finding on the question of limitation and has dismissed the suit of the plaintiffs Nos. 1 and 2 on. this ground. We cannot, in second appeal, revise the judgment of the learned District Judge on the questions of fact which were raised in the lower Courts. But there is, in our opinion, a clear misdirection in his judgments--a misdirection as to the onus of proof. On the facts which we have stated above, namely, that chur Ramnagore was excluded from the lease to the contesting defendant, that the Government dealt with the chur land from the year 1882 and settled this chur land with Ram Das Sen and others, the fact of the institution of the suit by the sons of Gopal Ghose and their success and the delivery of possession to them and the further fact that the Government gave up possession on the 15th December, 1892, of the remaining portion would throw the onus of proof of adverse possession on the defendants. Possession, so far as it can be deduced from the documents to which we have referred, would be with the plaintiffs or their lessors.
7. But there is another reason why, on the facts of this case, Article 142 of the Second Schedule of the Limitation Act would not apply and why the defendants, in order to Succeed in the present litigation, must prove title by adverse possession The defendant No. 1 was a lessee, and, if he trespassed on the land in dispute in this case, which adjoins the land leased to him, he was trespassing on the adjoining land of his landlord--a land which was expressly excluded from the lease. In Nuddyarchand Shaha v. Meajan 10 C.820; Sir Richard Garth, C.J. laid down as a rule applicable to this country that, if it could be distinctly proved that the tenant had made an encroachment adversely to his landlord, an adverse possession for twelve years might give the tenant a title by limitation. The learned Chief Justice thought that that rule was applicable to this country and it is clear also from later decisions in this Court that the rule has been applied in this country. If a tenant encroaches on the adjoining land of his landlord. he must distinctly prove adverse possession; and, such adverse possession must be set up in defence to the suit. It must be shown that there was not merely possession, but that such possession was with notice to the landlord and was known by the parties to be a trespass. The lower appellate Court, in dealing with the case, as far as the question of limitation is concerned, begins by saying: 'It was for the plaintiffs Nos. 1 and 2 to prove that they were in possession of the land in suit within 12 years before the date of finding the plaint.' The plaintiffs Nos. 1 and 2 were the lessees of the same landlords as the contesting defendants, and, that being so, they stand in the shoes of the landlords, and the defendants must show, in order to defeat the right of the plaintiffs, that they had acquired title by adverse possession.
8. The lower appellate Court discussed the plaintiffs' evidence; but, while dealing with the defendants' evidence, all that it said was that there was an assertion of possession on behalf of the defendants from 1289, the date of the lease, and that some rent receipts were produced. The evidence on behalf of the defendants has not been discussed at all, and we do not know what the precise nature of that evidence is. We are of opinion that, if the lower appellate Court had not misdirected itself on the question of onus of proof, it might have come to a conclusion different from that arrived at by it.
9. We cannot, therefore, accept the judgment of the learned District Judge on the question of limitation as conclusive in second appeal. We, therefore, set aside the judgment and decree of the lower appellate Court and remand the case to that Court to be dealt with according to the observations made above. Costs will abide the result.
10. As regards the tenant defendants, we dismiss the appeal against them with one set of costs, which we assess at two gold mohurs. As regards plaintiff No. 3, there is clearly a cause of action. The conduct of the defendant No. 1 as found by the. learned District Judge and partial dispossession of plaintiff afforded a sufficient ground of action. The appeal, so far as his share is concerned, should on the findings be decreed and as to this share we restore the judgment of the first Court with costs which should be one-half.