Hill and Rampini, JJ.
1. This suit, which was instituted on the 10th December 1888, was for the recovery of possession of three plots of land. The suit, as at first brought, was for the possession of a 14-annas' share of these three plots of land. Afterwards, the plaintiff's acquired the title to the remaining 2-annas' share in these plots, and the plaint was accordingly amended on the 21st June 1892.
2. The plaintiff's claimed these plots of land as re-formations of their villages of Monia and Kewagram, which, it is said, had been swept away by the river Madhumati. The defendants, on the other hand, claimed them as reformations of their village of Chandani.
3. The District Judge has found in favour of the plaintiffs. He has decided that the three plots are re-formations of the plaintiffs' villages, Monia and Kewagram, and that the suit is not barred by limitation.
4. The defendants now appeal, but their appeal has been admitted only on the question of limitation, so that is all that we need concern ourselves with in this appeal.
5. The plaintiff's, it appears, had an 8-annas' share of the proprietary right in the villages of Monia and Kewagram, and a patni right of the remaining 8-annas' share. In 1275 (or 1868) they created a patni of their zemindari right, and a darpatni of their palni right. They re-acquired these rights in 1878, 1880, and 1883, so that now they are, as regards their title to these three plots, in the same position as before the creation of the subordinate tenures. In these circumstances, the District Judge has held that the suit is not barred by limitation, because, according to the decision of this Court in the case of Woomesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15, the plaintiffs wore not in a position to sue for the possession of the land in dispute until after the acquisition by them of the rights of;the subordinate tenure-holders. As long as the subordinate tenures were in existence, and the holders of them were paying rent to the plaintiffs, the plaintiffs could not sue for the possession of the subject of the tenures, and limitation cannot be held to have run against them. The District Judge has further found that the defendants, have not succeeded in showing that the three plots of land in question were in existence, or had emerged from the bed of the river, more than twelve years before the institution of the suit; and, that, accordingly, they have not proved their adverse possession of them for such a period as to give them thereby a title to them against the plaintiffs.
6. On behalf of the defendants, the learned District Judge's findings on both points have been disputed. In the first place, it has been argued that the judgment of Sir Barnes Peacock in the case of Woomesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 merely laid down the law as regards sales under the Patni Regulation, and that inasmuch as the sales at which the plaintiffs purchased the under-tenures were not all sales under Regulation VIII of 1819 (one of them only having been held expressly under that regulation), and as the plaintiffs purchased at these sales only fractions of the tenures, they did not acquire the tenures free of incumbrances, but only the rights, titles and interests of the judgment-debtors, and, therefore, they would be as much bound by any adverse possession on the part of the defendants, as their tenants, the subordinate tenure-holders, would have been.
7. But we are of opinion that the judgment of Sir Barnes Peacock in question was not meant to apply only to sales held under the Patni Regulation. The tenure referred to in that judgment was not in strictness a patni-tenure, though called so, and though apparently saleable in accordance with a stipulation entered into by the tenure-holder under the same conditions as patni tenures are sold. We think rather that from the latter part of the judgment it is apparent that Sir Barnes Peacock intended to lay down, and did lay down, the rule that a grantor of a subordinate tenure is not bound to sue for trespasses committed against his tenant during the continuance of the tenure, and that his right of action accrues when the tenancy comes to an end. That this was the meaning of the learned Chief Justice is further apparent from the case of Davis v. Kalee Abdul Hamed 8 W.R. 55, in which, in the language of the head-note, it was held that 'a landlord's cause of action to recover possession from a tenant, or any one claiming under the tenant only accrues from the time when he determines the tenancy, and that there can be no limitation or adverse possession as long as the tenancy continues. In short, the rule of law to be deduced from these cases would seem to be as laid down in Mitra's Law of Prescription, 3rd edition, p. J.45, where it is said: 'The possession of a trespasser does not become adverse to the lessor, until the latter acquires a right to the khas possession of the demised premises. To hold that twelve years' possession by a trespasser of the whole or part of the demised premises would bar the right of the lessor, although the lessee does not renounce his character as such, and the lease is still subsisting, is to violate the maxim that 'prescription does not run against a person who is unable to act.' The general principle of the law is to bar a person who has a right to enter, if he does not exercise that right in a certain time, not to bar those who cannot exercise that right.'
8. We are, therefore, of opinion that the first reason given by the District Judge for holding that the suit is not barred by limitation, is a good one, and we see no reason to disturb his judgment on this ground.
9. We also consider that he was right in finding that inasmuch as the defendants have failed to prove adverse possession on their part, or indeed the existence of the three plots in dispute, for more than twelve years prior to the institution of the suit, the plaintiffs are entitled to succeed. It has been said that it was incumbent on the plaintiffs to prove possession of the disputed plots previous to the diluviation. But it has been found as a fact that the three plots are part of the plaintiffs' villages of Monia and Kewagram. If this finding be correct, and it cannot now be disputed, the plaintiffs must have been in possession of these plots previous to their diluviation as part of the villages of Monia and Kewagram.
10. The plaintiffs' title to, and possession of, these villages down to the time of their diluviation is not denied. They were found to be in possession of them at the time of the Thak. Their possession of the disputed plots must, therefore, be presumed to have continued during the period of their submergence, and though the defendants seem to have taken possession of them as soon as they re-appeared, yet as they have not proved that they did so more than twelve years before the institution of the suit, they have acquired no statutory title to them, and their plea of limitation on this ground also fails.
11. For these reasons we dismiss this appeal with costs.