1. This was a suit to recover possession, together with mesne profits, of a tract of alluvial land, which is alleged to have re-formed on the original site of the plaintiffs' putni taluk Turuf Sagoona, a taluk which the plaintiffs have purchased at certain sales, some of which were held under Regulation VIII of 1819, and some in execution of decrees for arrears of rent. The defendant raised the plea of limitation, and various other objections not necessary to be noticed in detail for the purposes of this appeal.
2. The plaintiffs sought to get over the plea of limitation in two ways, first, by showing that as auction-purchasers of the putni taluk, or rather taluks, at sales in satisfaction of arrears of rent, they were entitled to reckon time from the dates of the auction sales which were all within twelve years before the date of the institution of the suit; and, secondly, by showing that the disputed land became fit for cultivation within twelve years before the institution of this suit.
3. The Court below has held that the plaintiff's are not entitled to reckon limitation from the date of their auction purchase,---first, because they were not purchasers of the putni tenures free of all incumbrances within the meaning either of Regulation VIII of 1819 or of Bengal Act VIII of 1869; and, secondly, because even if they were entitled to claim the position of auction-purchasers of the putni, taluks free from all incumbrances within the meaning of those enactments, their right, as such auction-purchasers, had become extinguished by reason of the arrangement that they entered into with the zemindars under the ikrarnamas filed in this case, which had the effect of creating new putni tenures in their favour. It has further held that the plaintiffs failed to show that the disputed land became fit for cultivation within twelve years before the suit. And, accordingly, without going into the question of title, the Court below has dismissed the suit as barred by limitation.
4. Against that decision of the lower Court, the two plaintiffs preferred this appeal. At the hearing it was intimated to the Court that one of the two plaintiffs, Bipro Das Pal Chowdhry, had settled the case between himself and the defendant, and that the appeal, so far as he was concerned, should be dismissed but without costs, the defendant (respondent) not pressing for his costs.
5. The appeal, therefore, proceeds at the instance of one of the two plaintiffs only, viz., Nuffer Chandra Pal Chowdhry; and it has been contended on his behalf that the Court below was wrong in holding that the plaintiff is not entitled to claim the benefit of the law relating to an auction-purchaser of a putni taluk for arrears of rent under article 121 of the second schedule of the Limitation Act, and to reckon limitation from the date of the auction sale, the several putni taluks purchased by the plaintiff's being distinct taluks though they relate to undivided shares in one turuf, and the ikrarnamahs referred to by the Court below not having the effect attributed to them.
6. On the other hand, it has been contended by the learned Counsel for the respondents, in the first place, that it is difficult to say that an encroachment by a trespasser is an incumbrance within article 121 of the second schedule of the Limitation Act, and that, in the second place, even if an encroachment by a trespasser can be treated as an incumbrance, the plaintiffs were not auction-purchasers of a putni taluk within the meaning of the article just referred to, as several of the sales at which the plaintiffs made their purchase were not of any of the putni mehals in their entirety as originally created, but of portions only of those putnis. And it was further contended that the ikrars had really the effect which has been attached to them by the Court below.
7. Before dealing with the question of limitation, it becomes necessary, therefore, to consider how the facts stand. Turuf Sagoona was let out in putni under five different engagements, each relating to a different share; and the result was that there were the following five putnis created: One by Nocoor Moni Debi, comprising one-third of the zemindari; a second, by Bama Sundari Debi, comprising a one-sixth; a third by Tincowrie, comprising one-twelfth; a fourth by Annoda Prosad Banerjee, comprising a one-fourth; and the fifth and last by Kali Das Banerjee comprising the remaining one-sixth.
8. Of these five putnis, the three that appertained to the shares of Bama Sundari, Tincowri and Annoda and covered a moiety of the entire estate, were admittedly sold in their entirety. In regard to the remaining moiety belonging to Nocoor Moni and Kali Das, the sales at which the plaintiffs, or rather their predecessors, purchased were not in respect of the entire shares of one-third and one-sixth. The putni of the one-third share of Nocoor Moni had subsequently become sub-divided into two equal parts of one-sixth each, one of which was acquired by the plaintiffs at a sale under the putni Regulation VIII of 1819, and the other at a sale in execution of a decree for arrears of rent under Bengal Act VIII of 1869. And the putni of the one-sixth share of Kali Das was sold at three sales under Regulation VIII of 1819, and purchased separately by the predecessors of the plaintiffs.
9. I should add here that, in regard to the putni of Tincowrie's one-twelfth share, a question was raised as to whether the plaintiffs bad acquired any right to the same by the disclaimer of the son and heir of Ram Bux Chetlangi, the auction-purchaser, the disclaimer being of a date subsequent to the date of the institution of the suit. As the question raised is one that relates to the title of the plaintiffs, it should be left to the Court below to determine it after the remand which we propose to direct in this case.
10. This being the state of the facts, let us now see how the law is applicable to the case as it stands. If the plaintiffs can make out their position as auction-purchasers of a putni taluk at a sale for arrears of rent, with a right to avoid incumbrances, it must, I think, upon the authorities, be held that they are entitled to reckon limitation from the date of their auction purchase, either under article 121 of the second schedule of the Limitation Act, adverse possession against the defaulting putnidar being regarded as an incumbrance, or under article 144, the possession of the defendant being regarded as becoming adverse to the plaintiffs only from the date of the auction-purchase.
11. Article 121 of the second schedule of the Limitation Act no doubt speaks of suits to avoid incumbrances or under-tenures in an entire estate sold for Government revenue, or in a putni taluk or other saleable tenure sold for arrears of rent; but it has been uniformly held in a series of cases in this Court that an encroachment by a trespasser comes within the meaning of an incumbrance, and that the cause of action for a suit by an auction-purchaser, at a sale for arrears of Government revenue or for arrears of rent, dates from the time of the auction purchase. The earliest of these cases that I shall refer to is the case of Lukhmeer Khan v. Collector of Rajshahye S. D. A. (1851) 116. That was, it is true, a case of au auction-purchaser of a zemindari at a sale for arrears of Government revenue; but the principle of the decision in that case applies equally to this.
12. The next case, and the most important one upon the present question, is that of Womesh Chunder Goopto v. Rajnarain Roy (1868) 10 W. R. 15. That case was decided in 1868, and was the case of an auction-purchaser of an under-tenure suing to recover possession of land claimed to he part of the under-tenure, which had been encroached upon by a trespasser; and it was held by a Bench of three Judges of this Court that limitation ran from the date of the auction purchase. The reasons for the decision are fully set forth in the judgment of Sir Barnes Peacock. This case was followed in Khanto Moni Dasi v. Bijoy Chand Mohatab Bahadoor (1892) I.L.R. 19 Cal. 787 in which a purchaser at a sale under Regulation VIII of 1819 was held to be unaffected by any adverse possession of land appertaining to the putni mehal which had been encroached upon. And the same view was taken in the case of Karmi Khan v. Brojo Nath Das (1895) I.L.R. 22 Cal. 244.
13. It is unnecessary for us to state at length the reasons for holding that the case should be governed by article 121, or in other words, that an encroachment by a trespasser should be regarded as an incumbrance; and that even if article 121 did not apply, and the case came under article 144, the possession of the defendant became adverse to the plaintiffs only from the date of the auction sale of the putni. The reasons in support of this view, as I have already observed, are fully set out in Sir Barnes Peacock's judgment in Womesh Chunder Gupto v. Rajnarain Roy (1868) 10 W. R. 15; and we do not think that the grounds urged by the learned Counsel for the respondent are sufficient to justify our declining to follow the decisions cited above, which have uniformly held that limitation in such cases should be reckoned from the date of the auction purchase.
14. That being so, the next question is whether the plaintiffs are auction-purchasers of a putni taluk with the right to avoid incumbrances. So far as the putni taluks which were originally created by Bama Sundari, Tincowrie and Annoda are concerned, there can be no question that the plaintiffs are auction-purchasers with the right to avoid incumbrances. The only question is whether they can be regarded as occupying the same position with regard to the putni taluks that were originally created by Nocoor Moni and Kali Das.
15. Now, in regard to the putni taluk that was originally created by Nocoor Moni, the plaintiff cannot claim the benefit of article 121, nor can they treat the possession of the defendant as having become adverse to them only from the date of the auction purchase, because what was purchased at the two sales relating to that putni was in neither case an entire putni taluk, the sale in each case being that of a share in the putni taluk.
16. As regards the putni that was originally created by Kali Das, although the sales at which the plaintiffs or their predecessors purchased were three different sales, at which Kali Das's share of one-sixth was sold in three different shares, the learned Vakil for the appellant contended that the plaintiffs should be held to be purchasers of an entire putni taluk free of all incumbrances, because the three shares were all sold on one and the same day, and were purchased by one and the same person. We do not think that the fact of the sale having been held on one and the same day and the purchaser having been one and the same person makes any difference.
17. The sales were sales of the original putni in different shares and not in its entirety. The purchaser at none of these three sales can therefore be considered to have purchased a putni taluk free of all incumbrances. That being so in our opinion the benefit of article 121, or the right to disregard adverse possession against the defaulting putnidar, can be claimed only so far as the eight annas share, made up of the shares of Bama Sundari, Tincowrie and Annoda, is concerned. But as regards the remaining 8 annas, the suit must be held to be barred, unless the second ground is made out, viz., that the land became fit for cultivation within twelve years of suit.
18. It remains now to consider the effect of the ikrarnamas referred to in the judgment of the Court below. Though in certain respects the terms on which the putnis had been originally created were altered by these documents, we do not think that had the effect of extinguishing the right of the plaintiffs as auction-purchasers of the putni mehals to avoid incumbrances or to recover possession of lands belonging to the putnis which had been encroached upon.
19. The terms of the ikrarnamas which were most strongly relied upon by the learned Counsel for the respondents as having the effect of extinguishing the rights under the original putni, are those relating to the abatement of rent, and to the condition that the lands reformed on the original site of the old putni, upon being recovered, should have a new rent assessed upon them; but although that is so, the ikrarnamas contain a further condition that the auction-purchasers should institute suits to recover possession of these lands which had been encroached upon, and that if they neglected to institute such suits, the condition relating to the abatement of rent should be cancelled. The terms of the ikrar, considered as a whole, do not, therefore, in our opinion, affect the right of the auction-purchasers to avoid incumbrances or recover possession of lands reformed on the original site.
20. As to the second ground upon which the plaintiffs in the Court below sought to get over the plea of limitation, viz., that the lands reformed or became culturable within twelve years of suit, the learned Vakil for the appellants has very properly exercised his discretion in not going into the evidence in detail, as he thought he was not likely to be able to induce us to arrive at a conclusion different from that come to by the Court below.
21. The result then is, that as regards an eight-anna share of the entire mehal, Turuf Sagoona, the suit must be held not to be barred by limitation. But, then a new issue arises for determination by reason of the withdrawal of one of the plaintiffs from the suit, the share of that plaintiff not being admitted. The Court below must therefore determine what the share of Nuffer Chandra Pal Chowdhry is in putni mehal Turuf Sagoona; and then, if he succeeds in establishing his title to the lands in dispute, he will be entitled to recover possession to the extent of one-half of the share which he has in the putni mehal, his claim in respect of the other half being barred by limitation. The case will, therefore, go back to the Court below for the determination of the other issues raised in it, together with the additional issues indicated above, as to the extent of the share of Nuffer Chandra Pal Chowdhry, and also as to whether the plaintiff has acquired the interest of Rambux Chetlangi.
1. I agree with the view expressed by Mr. Justice Banerjee, and I have but little to add.
2. Practically the only question we are asked to decide is, whether the suit is barred by the Statute of Limitations. We must take it in the face of the decision in the case of Womesh Chunder Goopto v. Rajnarain Roy (1868) 10 W. R. 15 which is now nearly thirty years old, and which has been since followed by other decisions of this Court, that the period of limitation in a case such as the present only begins to run from the date of the sale becoming final and conclusive. That being so, the plaintiff's suit is not barred by the Statute. This view, however, only applies to the auction-purchases by the plaintiff or his predecessors in title of the putni tenures, which were sold in their entireties.
3. It will have to be ascertained what the interest of the now sole appealing plaintiff really is.
4. With reference to the ikrarnamas, I cannot regard the effect of those documents as putting an end to the putni tenures. They modify some of its provisions, but proceed upon the footing of its continuance. This seems to me pretty plain when one reads the documents. If so, the plaintiffs, as the auction-purchasers of the putni tenures, are still entitled to avoid the incumbrance on the tenure.
5. With this intimation of our opinion upon the point of the Statute of Limitations, the case must go back to the Court below to ascertain what the precise interest of the present appellant now is, and to try out any other issues of fact which have to be tried.