1. This is an appeal on behalf of the Maharaja of Tipperah in a suit commenced by him for assessment of rent in respect of the disputed land against the representatives of one Durga Charan Chakrabarti. In 1894 the laud was in the occupation of occupancy raiyats and when proceedings were taken under Chapter X of the Bengal Tenancy Act they appeared before the Settlement Authorities awl staled that they held under Durga Charan, who himself was a rent-free holder. On the 21st August 1896 the Settlement Record was prepared with an entry to the effect that the Maharaja was the zemindar, Durga Charan was an intermediate holder and the occupancy raiyats held under the latter. On the 11th April 1908 the present action was commenced for assessment of rent. The defendants pleaded that the land was not liable to be assessed with rent, and that in any event the claim for assessment was barred by limitation.
2. The Court of first instance overruled these contentions and assessed rent. Upon appeal the learned Judge has held that the land is liable to be assessed with rent, but he has dismissed the claim on the ground that it is barred by limitation.
3. It has been contended in the present appeal that the view taken by the Judge cannot be supported. The learned Subordinate Judge has held that the claim of the plaintiff is barred because in 1894 an adverse title was set up on behalf of Durga Charan by the tenants. It has been argued by the learned Vakil for the appellant that this could not operate as adverse possession in favour of Durga Charan against the zemindar. In our opinion, there is considerable force in this contention. Hut it is clear that the decree of the Subordinate Judge must be affirmed on a different ground. As has been pointed out by the learned Vakil for the respondent, the plaintiff repudiates the entry in the Settlement Records. In fact he has not produced in evidence the sheet which contains the entry about Durga Charan and he states expressly that he denies that Durga Charan held any tenure at all. The reason is that if it is admitted that Durga Charan was a tenure-holder the question would arise, why he never paid any rent and nonpayment of rent might go to indicate that the holding was a rent-free grant. The plaintiff, therefore, takes his stand upon the position that Durga Charan is a trespasser and he does not elect to treat him as a tenant on receipt of rent from him. The question, therefore, arises whether the plaintiff has been in possession within 12 years. Upon the facts found it is clear that he has hot been in possession within 12 years. The result is that his claim for assessment is barred by limitation.
4. The decree of the Court below is, therefore, affirmed and this appeal is dismissed with costs.