1. The plaintiffs are the five sons of one Tarak Nath Bose, deceased. Tarak Nath Bose and Hare Krishna Bose were two brothers. The latter died in 1881 leaving a widow who also died on the 7th November 1921. The former died on the 9th September 1921.
2. The plaintiffs' case appears to be as follows : The properties described in Schedule Ka to the plaint belonged to the joint family of the said two brothers. They consist of two items, Plot No. 1 being 4 bighas 10 cottahs of land held in mokurrari right under a deity Sree Sree Iswar Dakshina Ray; and Plot No. 2 being 3 bighas of land held in lakheraj right. The plaintiffs are now the owners of the said properties. In 1916 the defendant Company took forcible possession of a bigha of land out of Plot No. 1 of Schedule Ka and erected cooly huts thereon, and upon that Tarak Nath Bose, who was then an employee under the said Company, instituted a suit, being Suit No. 364 of 1916, for declaration of title, recovery of possession and mesne profits and for a permanent injunction restraining the defendant Company from erecting any structures thereon and for other reliefs. Tarak Nath Bose also instituted criminal proceedings in connexion with this forcible dispossession. The Company then prevailed upon Tarak Nath Bose to withdraw from the suit agreeing to give Tarak Nath Bose a plot of jote land 6 bighas in area and described in Schedule kha to the plaint and to excavate for him a tank 100 ft. square and also to erect a boundary wall round his homestead. On this agreement being reached Tarak Nath Bose withdrew from the suit which was eventually dismissed on the 8th April 1916. The execution of a formal deed of exchange which was agreed upon at the time was, however, put off. The Company gave Tarak Nath Bose the land aforesaid which the latter continued to-be in possession of by cultivation thereof. In 1917 the Company wanted to have some more landa and there were negotiations between them and Tarak Nath Bose for the purchase of plot No. 2 of Schedule ka, as the result of which Tarak Nath Bose made over possession thereof: to the Company, it being arranged that the Company would pay its proper price. The Company thus took possession of this plot as well and erected structures thereon. Subsequently the Company asked for and obtained the documents relating to the two Plots, Nos. 1 and 2 in order to execute the deed of exchange and the kobala, but thereafter did nothing in that direction. Thereafter in 1918 the Company dispossessed Tarak Nath Bose from, the land of Schedule kha. This led to open rupture between the parties and in order to put Tarak Nath Bose into further trouble the Company instituted a suit against him for ejecting him from his homestead. Tarak Nath Bose filed a wiitten statement denying the Company's right to eject him and characterizing the suit as malicious and as being the outcome of the grudge which the Company bore against him for his refusal to part with the homestead for which, he alleged, the Company had offered a price of Rs. 6,000 which was inadequate. In the said written statement Tarak Nath Bose also set out what the Company had done in respect of Plots Nos. 1 and 2 of Schedule ka. The suit ended in a compromise, dated the 16th April 1919,'under which the Company purchased the homestead for Rs. 6,000, and there was a condition in the compromise, that both parties would amicably settle between them the dispute relating to the said two plots. This dispute, however, was not settled as agreed upon and Tarak Nath Bose eventually died.
3. After the death of Tarak Nath Bose on the 14th December 1921 the plaintiffs instituted the present suit. The main prayers in the plaint were as follows:
(ka). - That possession of the whole of the land described in Schedule ka below may be given to the plaintiffs upon a declaration of their title thereto.
(kha) If for any reason the Court holds the above-mentioned contract to be en-forcible regarding the 41/2 bighas of land described in Plot No. 1 of Schedule ka, then possession may be given to the plaintiffs of the property of Schedule kha, upon a declaration that they are entitled to get possession of the same and a decree may be passed for execution of a proper deed of exchange in respect of the same and for payment of the sum of Rs. 1,800 for digging a tank and for erecting the compound wall.
(ga) That the defendant Company may be ordered to return to the plaintiffs all the documents, etc., regarding the lakheraj (rent-free) property mentioned in plot No. 2 of Schedule ka.
(gha). - That the defendant Company may be ordered to remove all the structures and other things that they have on the same land.
4. On the plaint being filed the Company filed a written statement on the 20th February 1922 traversing almost every allegation made in the plaint. This statement consists of thirty paragraphs verified by one Bepin Behari Ganguli who described himself as the gumastha of the Company for the mehal in suit. The statement, however, was afterwards found to be defective as some necessary matter was omitted from it on account of inadvertence and this necessitated the filing of a further statement on behalf of the Company which they filed, verified again by the said gumastha on the 17th March 1922.
5. These pleadings gave rise to fourteen issues, most of which were found in favour of the plaintiffs by the Subordinate Judge. The learned Judge found in favour of the plaintiffs' title to the lands of Schedule ka and gave them relief in the shape of a declaration to that effect. The other prayers of the plaintiffs were rejected. The plaintiffs have accordingly appealed to this Court.
6. It is somewhat difficult to follow the learned Judge's reasoning which led him to refuse the other prayers in the plaint ; because he has not dealt with those prayers separately. Nor has the learned Judge kept in view the distinction between the plaintiff's case as regards the two plots of Schedule ka. On the whole the reasons which weighed with the learned Judge, as far as I am able to gather from his judgment, are these : As regards prayer kha of the plaint, he seems to have held that the prayer was one for specific performance of a contract, the cause of action for which accrued in June 1918, and the suit having been filed more than three years after such accrual, the relief was barred he has said nothing about prayer ga; as regards the prayer for recovery of possession of the lands of Schedule ka, it is not at all clear whether he considers the same barred by limitation; but in any event he is clearly of opinion that 'law and equity will stand in the way of plaintiffs' getting khas possession;' and as regards prayer gha, though he says nothing about it specifically, it fails as a corollary to the plaintiffs failure to recover khas possession of the lands of Schedule ka.
7. I shall presently deal with the grounds urged on behalf of the appellants in support of the appeal, but before I do so I desire to deal with some of the contentions urged on behalf of the respondent Company, because if these contentions succeed, the judgment of the learned Judge must stand.
8. The first contention which the respondent Company attempted to urge is to the effect that they are entitled to the lands of Schedule ka, as being the present zemindars of the mehal, as these lands were chakran lands which had been given to the pujari of the deity Siva and as they have been surrendered in their favour by the son of the late pujari. Apart from the merits of this contention which I find wholly unsupported by any evidence except the evidence of one Basanta Choudhury who says he is the son of the late pujari and who professes to have made the surrender, and whose evidence on the face of it is absurd and untrustworthy, the respondent Company are, in my opinion, not competent to challenge the plaintiffs' title for which a declaration has been made by the learned Judge in plaintiffs' favour, they not having preferred any appeal from that decree.. The next contention of the respondent is to the effect that there was no such agreement between the parties under which according to the plaintiffs' case there was exchange of Plot No. 1 of Schedule ha with the lands of Schedule kha in 1916, that there was no such exchange as was alleged on the plaintiffs' behalf, that there were no negotiations relating to Plot No. 2 of Schedule ka and no making over of possession in respect of that plot nor any delivery of title-deeds, and that generally speaking the plaintiffs' story is a myth. The plaintiffs have sought to prove the agreement relating to the exchange by direct evidence as well as by evidence showing that in point of fact they were in possession of the Schedule kha lands for some time, that is to say, from the latter part of 1916 to some time in 1918 when they were dispossessed. (His Lordship then examined the evidence and proceded). On consideration of the facts and circumstances of the case I agree with the learned Judge in holding that the agreement upon which the plantiffs rely has been proved. I also hold in agreement with him that the plaintiffs' case as to the circumstances under which Plot No. 2 of Schedule ka was made over to the defendant Company as alleged on behalf of the plantiffs, is substantially true.
9. It is impossible to account for the transfer of possession of this plot on any other hypothesis and indeed no alternative case, beyond a bare denial of plaintiffs' right and possession in this plot at any time, has not been put forward on behalf of the defendant Company. Moreover. Babu Tincouri Ghosh, a very respectable pleader who is said to have taken a very important part in these transactions on behalf of the defendant Company, has not stepped into the witness-box, although it is evident that he was looking after the defendant Company's case. The only suspicion that I feel is as regards the delivery of the title-deeds; for while it is said in the plaint that the title-deeds of both the plots of Schedule ka were made over for the purpose of execution of necessary documents and the evidence indicates that all of them were made over at one and the same time, the prayer in the plaint is confined to recovery of the title deeds of only Plot No. 2 of that schedule. I am not satisfied that the title-deeds were really made over and at any rate no details are forthcoming as to the nature and number of the title-deeds, if any, that were so made over. This being my view of the facts, I now proceed to deal with the grounds urged on behalf of the appellants in support of their appeal.
10. The appellants' first argument relates to their prayer kha. As regards this prayer it consists - (a) of recovery of possession of Schedule kha land, on declaration of plaintiffs' title thereto; (b) of directions for the execution of a proper deed of exchange in respect of that plot and for payment of Rs. 1,800 for digging a tank and for erecting a compound wall. Portion (b) of this prayer in its essence involves reliefs for specific performance of a contract entered into so far back as 1916, and must I think be held to be barred by the three years' rule of limitation. As regards portion (a) of this prayer the learned Judge in my opinion has erred in holding that it is governed by the same rule. The cause of action was the dispossession in respect of this plot in 1918 and upon the allegation upon which the plaintiffs have come to Court Article 142 is clearly the article which should be held to apply. The question then is whether the plaintiffs are entitled to succeed on the facts which have been established. It is clear that in order to succeed as regards this part of the case the appellants must establish their title to the Schedule kha plot. It has been urged on behalf of the appellants that in view of the part performance of the contract under which they were put in possession of this plot in exchange for Plot No. 1 of Schedule ka, the omission to execute a formal deed of exchange was immaterial and equity will step in and complete any defect in the plaintiffs' title and will assist them in having their title declared and in recovering possession.
11. In this behalf reliance has been placed upon the decisions of the Judicial Committee in the cases of Imambandi Begum v. Kamaleswari Per shad  14 Cal. 169 and Mahomed Musa v. Aghore Kumar Ganguli  42 Cal. 801. On behalf of the respondents it has been argued that both these cases deal with transactions which took place before the Transfer of Property Act came into existence, under Section 54 of which a registered intrument is essential to the validity of a transfer and that the principle laid down in these cases cannot assist the plaintiffs. This argument has some force and weight of authority in its support. To deal with the question as to how far the doctrine of part performance may assist the plaintiffs in the present case it is necessary to examine the state of the authorities bearing upon the point.
12. In Immudipattam Thirugnana Kondama Naik v. Periya Dorasami  24 Mad. 377 the transaction by which a mortgage was sought to be effected was of 1882 and the suit was instituted in 1895 and the argument before the Judicial Committee was that though the mortgage fell short of an actual transfer it showed a good contract for one, and the defendant might call upon the heir of the contractor to implement the contract. Their Lordships held that at the date of the deed a transfer such as that alleged could not be effected except by a registered deed as required by the Transfer of Property Act of 1882 and observed thus:
Certainly if such a right exists it would be an answer to the plaintiffs' claim and the exact form in which it could be enforced need not be considered.
13. A Full Bench of the Madras High Court in Kurri Verrareddi v. Kurri Bapireddi  29 Mad. 336 had occasion to consider this last-mentioned decision of the Judicial Committee and in that case they treated the observation quoted above as obiter dictum. The next decision to which reference need be made is that of the Judicial Committee in the case of Mahomed Musa v. Aghore Kumar Ganguli  42 Cal. 801. In that case there was a compromise in a suit between the parties in 1873 under which certain conveyances were to be executed, but the agreement of compromise was not registered nor embodied in the decree and no-conveyances were executed, but the compromise was acted upon and carried out-by all the parties to it and their succes-sors-in-title for 30 or 40 years. Their Lordships held that even though the. compromise and the decree-taken together was considered defective or inchoate the acts of the parties had supplied all defeats. Their Lordships observed:
When the actings and conduct of the parties are founded upon, as in the performance or part performance of an agreement, the locus poenitentiae which exists in a situation where the parties stand upon nothing but an engagement which is not final or complete, is excluded. For equity will support a transaction clothed imperfectly in these legal forms to which finality attaches after the bargain has been acted upon.
14. Shortly after another pronouncement was made by the Judicial Committee in the case of Venkayyamma Rao v. Appa Rao  40 Mad. 1134. In this case their Lordships allowed specific performance of a conditional promise, which otherwise would have been but inchoate, but which by reason of the acceptance and performance of the condition, was held to have amounted to a complete contract. The suit in this case, however, had been filed within three years from the accrual of the cause of action. The learned Judges of the Madras High Court appear to have felt considerable difficulty in interpreting the aforesaid decisions of the Judicial Committee to which I have just referred and a Bench of that Court by a majority held that in the absence of a registered deed of exchange as required by Sections 54 and 118 of the Transfer of Property Act a defendant in a suit in ejectment could not rely upon the possession which the plaintiff had given him in part performance of a contract and that the plaintiff in the suit was not estopped by his conduct from recovering possession. K.S.R. Ramanathan Chetty v. Ranganathan Chetty  40 Mad. 1134. The learned Judges in that case followed the Pull Beuch decision of that Court in the case of Kurri Veerareddi v. Kurri Bapireddi  29 Mad. 336.
15. In a recent Full Bench decision of that Court in the case of Vizagapatam Sugar Development Co. v. Muthuramareddi A.I.R. 1924 Mad. 271, in which A agreeing to sell his lands worth more than Rs. 100 to B received the consideration and put B in possession, but did not execute a conveyance and then sued to eject B from the land, it was held that performance by way of delivery of possession and an enforceable right on B's part to specific performance are good defences to the action, and the learned Judges in this decision purported to follow the decision of the Judicial Committee in the cases of Venkayyamma Rao v. Appa Rao  39 Mad. 509 and Mahomed Musa v. Aghore Kumar Ganguli  42 Cal. 801 and to overrule the decisions in Kurri Veerareddi v. Kurri Bapireddi  29 Mad. 336, and Ramanathan v. Ranganathan  40 Mad. 1134. In the same case the Division Bench after the expression of opinion of the Full Bench overruled the contention that the doctrine of part psrformance is limited to cases when the right to sue for specific performance is not barred on the date of the subsequent suit.
16. The Allahabad High Court in the case of Salamatuzzamin v. Masha Allah Khan  40 All. 187, appears to have hold the parties down, under somewhat similar circumstances, to the contract which in that case was a contract for exchange and was partly executed by mutual delivery of possession and dismissed the plaintiff's claim to recover possession from the defendant, though on account of want of a proper deed of exchange the title still remained in the plaintiff, and the time for specific performance of the contract had expired. The principle of this decision appears to have been approved of in a more recent decision of that Court in the case of Ram Sewak Rai v. Sheonaik Rai A.I.R. 1923 All. 433. The Bombay High Court has also applied this principle in the case of Sandu Valji v. Bhikchand Sura Mull A.I.R. 1923 All. 433 in which other-cases of that Court have also been referred to as having adopted it. In this last-mentioned case there was an agreement arrived at between the parties which had been acted upon for eleven years prior to the suit, and it was held that though the defendants' right to specific performance was barred, the plaintiff according to the equitable principle of part performance which makes the contract binding between the parties was not entitled to succeed.
17. So far as the Calcutta High Court is concerned the position seems to be that while there is no doubt that the rightful owner is estopped in a suit for recovery of possession from setting no his own title by reason of the contract which had bean performed in part there is some, though very slight, conflict of judicial opinion on the point as to whether this doctrine may be applied without reference to the question whether the right to claim specific performance of the contract is or is not still subsisting. The English authorities indicate that the doctrine is applicable only in those cases where specific performance can be obtained between the same parties in the same Court and at the same time as the subsequent legal question falls to be determined : Manchester Brewery Co. v. Coombs  2 Ch. 608, and Potter v. Potter  1 Ves. Son. 437, which was relied upon by the Judicial Committee in Mahomed Musa v. Aghore Kumar Ganguli  42 Cal. 801. This limitation as to the applicability of the doctrine has been recognized in Bibi Jawahir Kumari v. Chatterput Singh  2 C.L.J. 343, Singheeram Poddar v. Bhaghat Chandra Natidi  16 C.L.J. 543, Secretary of State v. Forbes  16 C.L.J. 217, Bepin Behari Mitra v. Tincouri Pathak  15 C.W.N. 976, Khagendra Nath Chatterjee v. Sonatan Guha  20 C.W.N. 149, Shyam Kishore Dey v. Umesh Ch. Bhattacharjee  24 C.W.N. 463, Gajendra Nath Dey v. Moulvi Ashraf Hossain A.I.R. 1923 Cal. 130, Pitambar Gain v. Ram Charan Moral : AIR1924Cal483 , and was implicitly recognized by Jenkins, C. J., in Puchha Lal v. Kunj Behari Lal  18 C.W.N. 445.
18. On the other hand, the doctrine has been applied without reference to the question whether the right to claim specific performance was or was not subsisting in the cases of Meher Ali Khan v. Aratunnessa Bibi  25 C.W.N. 905, and Shafikul Huq Chowdhry v. Krishna Gobinda Dutt  23 C.W.N. 284. The former of these two decisions is that of a learned Judge sitting singly and the exceptional circumstances of the latter case have been pointed out in the case of Pitambar Gain v. Ram Charan Moral : AIR1924Cal483 , and it has been explained in this case how that decision does not lay down any exception to the limitation as regards the applicability of the doctrine in cases only where specifie performance can be obtained. The preponderance of authority therefore is in favour of the limited applicability of the doctrine.
19. It is clear, however, that, estoppel arising out of the equitable doctrine of part performance will not create title in the plaititiffs if otherwise they had none. The Judicial Committee in the case of Maung Shwe Goh v. Maung Inn  44 Cal. 542 referred to Section 54 of the Transfer of Property Act and it would seem that their Lordships were of opinion in considering whether a contract creates a charge upon or interest in land one has to go by the statute and not upon any principle of English equity. It is true, as has been pointed out in this Court in the case of Jnan Chandra Das v. Rajani Kanta Pal  22 C.W.N. 522, and in decisions of other High Courts as well, that the Judicial Committee did not consider in that case whether the equitable doctrine of art performance was inapplicable in this country by reason of Section 54 of the Transfer of Property Act; still in a case where, as here, the plaintiffs seek to recover possession on the strength of their title, they cannot succeed when there has been no transfer by a registered deed Such as is necessary under that section. See Jagadhandhu Saha v. Radha Krishna Pal.  36 Cal. 920.
20. The appellants no doubt came upon the land quite lawfully and were in peaceful possession thereof, having been put in possession by the rightful owners, the defendant Company. It is conceivable, if the defendant Company are estopped by reason of the contract which was partly performed fully on the part of the Appellants' pr decessor and in part on behalf of the defendant' Company or by reason of some other equitable principle based on their conduct in relation to the land, to take the view that the defendant Company are no better than trespassers. Under such circumstances a question may arise whether prior peaceful and lawful possession may not furnish good title as against a trespasser; Even if those circumstances, however, in view of the decision of this Court in the case of Nisa Chand Gaita v. Kanchiram Bagani  26 Cal. 579, which notwithstanding several dissentient views, is now held to have laid down a principle which is well settled, so far as this Court is concerned sees Nabakishore v. Pora Bewa A.I.R. 1922 Cal. 198, the plaintiff cannot succeed. The result then is that the plaintiffs' prayer the must fail in its entirety.
21. I now come to deal with prayer ha, which involves a consideration of the two plots of Schedule ka. As regards Plot No. 1 the plaintiffs were dispossessed by the defendant Company at first in respect of one bigha out of it and thereafter the plaintiffs' father put the defendant Company in possession in respect of the rest. The defendant Company have no title to this plot. They had promised to have deed of exchange made in order to effect a transfer which would create their title. There was part performance of the contract on their behalf by reason of the plaintiffs' father being put in possession of the kha Schedule lands. From this land the defendant Company subsequently dispossessed the plaintiffs, thereby undoing what they had done in the shape of part performance. I fail to understand how any question of three years limitation can arise upon the facts or how any question of limitation at all can possibly arise. I do not agree with the appellants' contention that Article 143 of the Limitation Act applies, for in that case some contract which would entitle the plaintiffs to this plot by reason of a forfeiture or breach of condition thereof or some facts which would invoke the operation of Section 119 of the Transfer of Property Act will have to be proved.
22. At the same time I fail to see why the plaintiffs suit for recovery of possession should be held to be barred taking the cause of action as having accrued in 1916. The dispossession was partly in 1915 and partly subsequent thereto when the defendant Company made up their minds to retain possession of it to the exclusion of the plaintiff's. So far as the one bigha of land which formed the subject-matter of Suit No. 364 of 1916 is concerned, the plaintiffs' claim must be held to be barred by reason of Order 23, Rule 1(3), Civil P.C., no leave having been obtained for the institution of a fresh suit based on 4he same cause of action; but 1 am not prepared to accept the respondents' contention that the order of dismissal passed in that suit affects the remaining portion of Plot No. 1. The authority upon which the respondents have relied in this connexion, namely, the decision in the case of Achuta Menon v. Achutan Nayar  21 Mad. 35, if it purported to lay down a general rule, is one from which I would respectfully dissent, and indeed that decision has since been overruled by a Full Bench in the case of Shiga Reddi v. P.Y. Subba Reddi  39 Mad. 987.
23. Then I pass on to Plot No. 2 of Schedule ka. The case as regards this plot seems to be still more clear. The plaintiff's must be taken to have been dispossessed in respect of this plot in 1917 or thereafter when the defendant Company began to possess it as being their own property. It is urged on behalf of the respondents' that as the Plaintiff No. 3 has stated in his evidence that the price had bean settled at Rs. 1,000 per bigha and the Company had been put in possession the plaintiffs only remedy is to sue for the consideration. I have read the evidence of Plaintiff No. 3 with some degree of care and lam not at all sure that the statement that ho male was one abort which he had any personal or definite knowledge. He followed it up by saying : 'My oldest brother knew that the price was fixed at Rs. 1,000 a bigha.' In any case it is only a piece of evidence and not an admission by which the other plaintiffs are bound. On a consideration of the whole of the evidence I am not prepared to hold that there was any completed contrast as a result of which the defendant Company was put in possession and I am, therefore, of opinion that a claim for the consideration is not the plaintiff's only remedy.
24. As regards these two plots the learned Judge, as I have already stated, has given another reason for refusing the plaintiffs' claim, namely, that a decree for possession, in respect of these plots would offend against law and equity. This has been sought to be supported on behalf of the respondents on the ground that they have built structures on the land. It will be seen, however, that as soon as there was dispossession of 1 bigha out of Plot No. 1, Tarak Nath Bose sought the assistance of the Court and the Company took possession of the rest of that plot on a promise from which they eventually resiled. As regards Plot No. 2 they obtained possession promising to pay for it which they never did. If they built any structure on the plots as they appear to have done, at considerable cost, the difficulty is entirely their own creation and they can hardly look to the plaintiffs to be reimbursed. It is sufficient to say that there is not a word in the evidence suggesting that the plaintiffs induced any belief in the mind of the defendants that the latter had a title to either of the plots. Indeed this position i3 directly antagonistic to the Company's case as set forth in their elaborate pleadings.
25. I turn now to prayer ga of the plaint. This prayer must be rejected in view of my finding relating to plaintiffs' story as to the delivery of the documents.
26. The only other prayer that need be considered is prayer gha. In my opinion the plaintiffs are entitled to have the directions which they ask for under this head.
27. An elaborate argument was advanced on behalf of the respondents on the ground of limitation, it being urged that the plaintiffs cannot recover possession as the defendant Company are their landlords and the suit has been instituted more than two years after dispossession. This argument need not be considered as it relates, if at all, to Schedule kha land the claim as regards which must for the reasons already stated fail.
28. The result then is that in my opinion the decree passed by the learned Subordinate Judge in so far as it dismisses the plaintiffs' claim for khas possession of the lands of Schedule ka is set aside, and in lieu of it they will get a decree in addition to the declaration already made by the learned Subordinate Judge, for khas possession of the lands of that schedule with the exception of the one bigha of land covered by the Suit No. 354 of 1916, and also a declaration in terms of prayer gha of the plaint. The decree of the Court below as to costs will stand and the plaintiffs will also sot their costs in this appeal.
29. I agree.