.1 These appeals arise out of two suits for recovery of possession of two plots of land on a declaration of the plaintiff's title thereto. The plaintiff's, case is that these two pieces of land formed part of Jalpal Chak Purba and Pasohim Gumai clias Kalagaohee, which was permanently settled with the Raja of Mohisadal. On the 10th Assar 1281 corresponding to 7th June 1874, the Raja of Mabisadal granted a permanent lease of over 1,000 big has of land to one Mohesh Chandra Kotal. These lands were held by Mohesh and his successors in-interest who are referred to as the Kotals and were mortgaged on the 14th August 1905 to one Pitambar Maiti. Pitambar brought a suit on his mortgage, obtained a decree and purchased the mortgaged properties) in execution of the decree and was put in possession by the Court on the 12th August 1909. After Pitambar death, in 1911, the plaintiffs is these suits succeeded to Pitambar's interest and subsequently made an endowment of these lands in favour of a deity, and the present suits were brought by the plaintiffs as Shebaits to that deity. The. defendants claimed the lands as appertaining to the Jalpai Chak Gholl Andaria.
2. The first Court found that the plaintiffs bad failed to establish any titles to the lands in suit and dismissed the suit.
3. The lower Appellate Court has found that the lands in suit were not specifically leased to the Kotals and has left open the question as to whether they appertain to the Chak claimed by the plaintiffs or to that claimed by the defendants, and has granted the plaintiffi a decree, on the finding that they accrued a title by adverse possession.
5. Against this decree defendant No. I has appealed.
6. The main points urged in this appeal are, first, that the lower Appellate Court was not justified in granting a decree on a ease not made in the plaint and on which no issue was framed, and secondly, that, if the plaintiffs could succeed oh sash a ground, they are not entitled to rely on the addition of tie period of adverse possession of the Kotals to the period of adverse possession by Pi cam bar and the plaintiffs.
7. As regards the first point it is true that in the plaint no claim is made to a title by adverse possession.
8. On behalf of the respondents reference has been made to paragraph No. 2 of the plaint. At most, the facts there stated amount to a suggestion that a title by adverse possession might be made out, but certainly that paragraph does not amount to a definite claim to a title on that account, also no issue as to the title by adverse possession was framed in the Court of first instance. It, therefore, appears at first sight that the case falls within the general rule laid down in the case of Joytara Dassee v. Mahomed Mobaruct (12).
9. But on behalf of the respondents it has been pointed out that exceptions have been made to this rule and reliance is placed on the decision in the (use of Sundari Dassee v. Mudhoo Ohunder Sircar (8). The question, therefore, is. whether the facts of this case bring it within the exception laid down in that, decision. The latest case to which my attention has been drawn is the case of Bam Ohandra Sil v. Rdmanmani Dasi (9) and I may quote the remarks of my learned brother, Mr Justice Mookerjee, from page 785, in that decision: The question next arises, whether the plaintiff has established a title to the disputed land by proof of adverse possession for the statutory period. Here we cannot overlook the fact that title by adverse possession was not explicitly pleaded in the plaint. As ruled by this Court in Sundari Dassee v. Mwihoo Ohundet Sircar (10), the plaintiff may be allowed to succeed on a title by adverse possession pleaded for the first time in the court of Appeal, provided such a case arises on the facts stated in the plaint and the defendant is not taken by surprise.' Also in the case of Ananda Hart Basak v. Secretary of State (ll the same learned Judge makes the following remarks: 'The Subordinate Judge, however, not very consistently want to the question in his judgment and found that the plaintiff had acquired a good title by adverse possession. The appellants take exception to this course and contend that the plaintiff ought not to be allowed to succeed upon a case which was not made in the plaint: We think this argument is well founded and the case falls within the rule laid down in Joytara Dassee v. Mahomed Mobaruck (12)rather than within the rule in Sundari Dassee v. Mudhoo Ohunder Sircar (8).'
11. I quote these remarks, as they show that the question whether a plaintiff can succeed on a title by adverse possession not set up in the plaint depends mainly on the facts of each particular case and more particularly on whether the defendant has or has not been taken by surprise, and whether he has had an opportunity of meeting the case so set up. In my opinion this case comes within the exception, arid the facts and essential points resemble those in the case of Sundari Dassee v. Mudhoo Ohunder Sircar (8).
12. It is contended that in that case one of the grounds of distinction was that that suit was not one for a declaratory decree. Personally I find some difficulty in appreciating the distinction between a suit to recover possession on a declaration of title and a suit to establish one's right to property and to recover possession. But it is clear from the judgment of Norris, J., in Sundari Dassee's case (8) that the case of Joytara Dassee v. Mahomed Mobaruck (12) was distinguished not on that ground but on the ground that the defendant was aware of the case which he had to meet. In that case it is stated that the plaintiff's suit was dismissed in the first Court. He appealed and in the grounds of appeal to the lower appellate Court he distinctly gave notice to the other side, namely, that he was entitled to the land of adverse possession. Hare, although no issue was framed on this title, evidence was adduced and the Muneif in his judgment dealt at considerable length with the question' whether the plaiotiffs have by adverse possession acquired any title to the lands.' ' And also in the grounds of appeal to the lower Appellate Court the claim of a title1 by adverse possession was distance raised I would, therefore, hold that although it is not claimed in the plaint, the plaintiffs are entitled to succeed on the proof of this title.
13. As regard the second point, Pitambar'a possession commenced on the 4th August1909. So obviously as the suit was brought in March 1914, the title by adverse possession could not have accrued after the commencement of Pitambar's possession. The general proposition that independent trespassers are not entitled to add to the periods of their different possessions is not disputed, but it is contended on behalf of the respondents, and in my opinion rightly contended, that this is not a case of independent trespassers. The Kotals held these lands in dispute claiming them as lessees under the Raja, and Pitambar and his successors also held them on the strength of their purchase of the lessees' rights. There appears to have been no interval between the possession by the original lessees and the possession by the purchasers at the mortgage sale. Also on the facts found the respondents can uphold this decree on the ground that at the time of their purchase their predecessor, Kotalf, had already been in adverse possession of this land for a sufficient period which extinguished any interest which the defendant might have had. Though, as is pointed out on behalf of the appellant, the learned Subordinate Judge has not distinctly stated* in his judgment when the adverse possession commenced, he has recorded his belief in the evidence on this point as given by the plaintiff's witnesses and from the judgment of the first Court, it appears that their evidence shows that the adverse possession commenced not later than 1269, This amounts to a finding of fact that the Kotals were in adverse possession for over 12 years before the plaintiffs purchased from Pitambar, and consequently as Pitambar by his purchase obtained all the rights of the lessees not only under the lease but also acquired by them by adverse possession under a claim of right set up by virtue of the lease, this point must be decided against the appellant. The findings of the lower Court, which are findings of fact, are sufficient to support the decree which the plaintiffs have obtained.
15. It is contended on behalf of the appellants that the lands in suit were not covered either by the lease or by the mortgage of the leasehold interest and, therefore, the plaintiffs by their purchase at the sale in execution of the mortgage decree obtained no title to these lands. I hold, however, that as the lessees when holding by adverse possession claimed the lands by right of their lease, that interest also passed by sale of the leasehold interest.
16. On behalf of the respondents it is contended that these lands were covered by the lease, but on the view I take it is unnecessary to consider whether the effect of the lease was to grant the entire Chak with the exception of certain specified lands or only to grant the 15 plots of lands described in the schedule in the document.
17The result is that these appeals fail and are dismissed with costs.