1. This appeal arises out of a suit under Section 106 of the Bengal Tenancy Act in which the plaintiff re spondent prayed for correction of the Record of Rights. Both Courts have decided in the plaintiff's favour. In the suit three corrections were sought to be made, but I am now only concerned with the third and that is whether a certain plot of land of which one Rup Kanta Das is in actual occupation appertains to the tenure of Rs. 201 odd belonging to the plaintiff, or to the tenure of Re. 168 odd belonging to the defendants-appellants.
2. The first Court decreed the suit, and on appeal to the lower Appellate Court it was contended amongst other points that the decision of the lower Court was based on inadmissible evidence; the learned Judge, however, his judgment has not dealt with these points. He has held that as in a title suit brought by the plaintiff against Rup Kanta in 1912, RuP Kanta compromised and admitted the plaintiff's title, the plaintiff must be held to have been in possession since then through Rup Kanta and that as there was no evidence of subsequent attornment to the defendants, the plaintiff must be held to have been in possession ever since. In my opinion these findings are not sufficient for the decision of the appeal. If, as the defendants-appellants alleged, Rup Kanta was holding the land as their tenant, when the plaintiff brought the suit to eject Rup Kanta, the subsequent attornment by Rup Kanta to the plaintiff would not have the effect of ousting the defendants from possession; as was held by Markby, J in the case of enjoy Vhunder Banerjee v. Rally Prosono Mookerjee (**1)one who holds possession on behalf of another does not by a mere denial of that others title make his possession adverse so as to give himselfhimself the benefit of the Statute of Limitation. By adverse possession I understand to be meant possession by Person holding the land on his own behalf other than that of the person who was in possession'I may also refer to a decision of the Madras High Court in the- case of Siinivasa Ayyar v. Mulhusami Pillai (2), where it was held that 'A tenant repudiating the title under which he entered becomes liable to immediate eviction at the option of the landlord, but until the landlord indicates that he intends to exercise his option, the tenanoy subsists.'
3.It is not suggested in the present case that the defendants ever took any steps to put an end to the tenanoy of Rap Kanta under them, assuming that such a tenancy existed. So long as such a tenanoy had not terminated, Rup Kanta's possession of the land would be the possession of the defendants and his attornment to the plaintiff would not transfer possession from the defendants to the plaintiff.
3. It is contended that the lower Appellate Court has found as a fact that Rup Kanta was a tenant of the plaintiff; but this does not appear to be so. The most that pap be found in the judgment in support of this contention is the statement that 'there is no evidence at all of defendants possession beyond their allegation that Rup Kanta was their Chokanidar.' Their allegation that Rup Kanta was such a Chokanidar is evidence which should have been considered by the lower Appellate Court and an express finding should have been come to whether that evidence was oredible or not. It must be remembered that the defend-ants were successful before the Settlement Officer in getting their names entered in the Record of Rights; so, primarily there is a presumption in the defendants' favour and the burden of proof Vests on the plaintiff.
4. Next it is contended on behalf of the appellants that the remark in the judgment which I have just quoted has reference to the defendants' possession after the attornment of Rup Kanta, and as the learned Judge seems to think that, that was the only point on which the case turned. That may be so. The case must, therefore, be remanded for a rehearing by the lower Appellate Court for a determination of the point whether at the time of the compromise between the plaintiff and Rup Kanta and Rup Kanta's attornments to the plaintiff, Rup Kanta was holding the land under the defendants on a tenancy which was still subsisting. If the finding on this question be in the affirmative, the plaintiffs suit will be dismissed. If otherwise, the plaintiff will be entitled to the decree which she has obtained. The point will be decided on the evidence on the reoord.
5. I accordingly set aside the decree of the lower Appellate Court and remit this case to that Court for a re-hearing according to the remarks I have made above may judgment.
6. Costs of this appeal abide the result.