1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to immovable property, for possession, and for mesne profits The case of the plaintiff is that the disputed land which measures about 10 1/2 bighas was held by one Dyam who mortgaged it on the 27th July 1891. In execution of the decree made in the mortgage suit, the property was sold and purchased by the predecessor of the plaintiff on the 15th July 1897. He obtained delivery of possession through Court on the 14th November 1897. He alleges that subsequently the owner of the estate, within which the disputed land is comprised, forcibly evicted him and he has thereupon commenced the present action. His allegation in substance throughout has been that the land is rent-free and that consequently the owner of the estate has no title to it. The contention on behalf of the defendants, the owner of the estate, has been that the land was not lakhiraj, that Dyam had no transferable interest therein and that consequently the plaintiff has not acquired such title, by his purchase at the execution sale as may be enforced against the proprietor of the estate.
2. In the Court of first instance, the learned Subordinate Judge came to the conclusion upon the evidence that the title set up by the plaintiff was established and that he was entitled to recover possession of the land and the building in claim, but that he had failed to establish his claim to the tank. The result was that the suit was decreed in part. The matter was then taken in appeal by the landlord defendant and heard by the learned District Judge. He came to the conclusion that although the possession of Dyam without payment of rent had been proved, this circumstance by itself did not justify the inference that Dyam had a lakhiraj title. But this was not conclusive, because as Dyam had been in possession for many years,--apparently for more than 12 years,--he had acquired prima facie a good title by adverse possession, against the owner of the estate; and it appears to have been argued on behalf of the plaintiff that if the lakhiraj title was not established, the plaintiff was entitled to succeed when it was proved that Dyam had a good title by adverse possession. In answer to this contention, it was contended on behalf of the landlord that as Dyam was a tenant under him of another parcel which covered 17 1/2 bighas of land, it might fairly be assumed that he had encroached upon the adjoining land of his landlord and that consequently the plaintiff could not claim to have acquired a good title by adverse possession. The learned Judge accepted this contention as well-founded and upon the authority of the decision of this Court in the case of Ishan Chandra Mitter v. Raja Ram Ranjan Chuckerbutty 2 C.L.J. 125, he came to the conclusion that as the title of Dyam in respect of 17-3 bighas of land which he held as a tenant under the owner of the estate, was not higher than that of an occupancy ryot, his possession in respect of the encroached laud was also that of an occupancy ryot, and that as occupancy rights were not shown to be transferable, the plaintiff did not acquire any good title. In this view the learned District Judge reversed the decision of the Court of first instance and dismissed the suit.
3. The plaintiff has now appealed to this Court, and on his behalf it has been contended that the view taken by the learned District Judge cannot be supported, inasmuch as he has not found that Dyam encroached upon the adjoining land now in dispute at any time after the creation of the tenancy in his favour. It has also been contended that as the question of the nature of the title of the plaintiff to the land held by Dyam as a tenant has not been determined in the Court of first instance, and as there was no evidene on the record upon that-part of the case, the learned District Judge ought not to have held that his title was that of an occupancy ryot. In our opinion, these contentions are well-found-el and must prevail. It cannot be disputed that the doctrine of encroachment by a tenant upon the adjoining laud of his landlord can have no application unless it is established that the tenancy was created first and the encroachmant made afterwards. In the present litigation, it was not the case of either side in the Court of first instance that Dyam while a tenant had encroached upon the adjoining land of his landlord, and we are assured that there is no evidence on the record either as to the time of the origin of the tenancy or of the time when Dyam first took possession of the disputed land. It is clear, therefore, that the view taken by the learned District Judge cannot be supported.
4. In so far as the second point urged on behalf of the appellant is concerned, it must, also, in our opinion, prevail. In the Court of first instance the parties appear to have concentrated their attention upon one and one point only, namely, whether Dyam had a lakhiraj title to the land. The alternative case, namely, that if it was established that Dyam had an occupancy right, whether his interest was transferable or not, does not appear to have been raised or determined, and as the learned District Judge states, there is no evidence on the record upon which the question can be decided. We are informed that another suit is pending between the parties relating to the title to this 17 1/2 bighas of land. It is obviously undesirable that we should express any opinion upon the title to this land which might prejudice the trial of the suit now pending in the Court below. We may also point out that if it is established that Dyam took possession of the disputed land as a tenant of the adjoining land and that he was a ryot in respect of such land, the question may very well arise whether that interest was transferable or not. These questions must be determined first by the Court of appeal below before the suit can be dismissed.
5. The result, therefore, is that this appeal is allowed, the decree of the learned District Judge discharged in so far as it varies the decree of the Court of first instance, and the case remanded to the Court of appeal below. The learned District Judge will be at liberty to allow the parties to adduce additional evidence upon the question of the origin of the tenancy, its true character, and the time when Dyam took possession of the disputed land. Such evidence in ordinary course would be taken by the Court of first instance and the matter disposed of finally by the District Judge himself. We think it desirable that the remanded appeal should not be heard by the District Judge till the other suit has been decided. We, therefore, direct that the hearing of the suit relating to the 17 1/2 bighas of land be expedited ; and that if an appeal is preferred in that case to the District Judge, the two appeals be heard together, so that the possibility of any conflict of decision may be avoided. Costs of this appeal will abide the result.