1. This appeal arises out of a suit for establishment of plaintiff's mokarari right to the land in suit and for a declaration of his right to receive the rent thereof from the defendants Nos. 4 to 7 and for a further declaration that the decree for rent obtained by the defendants Nos. 1 to 3 against defendants Nos. 4 to 7 was inoperative.
2. Plaintiff alleged that the rights of the defendants Nos. 1-3 had passed to his lessors (defendants Nos. 8, 9) at a sale held in execution of a money-decree and that plaintiff had obtained a lease from defendants Nos, 8, 9 on the 5th Aghran 1310.
3. The defendants Nos. 1 to 8 denied that their rights had passed at the said sale and pleaded limitation.
4. The Court of first instance decided both the question of title and possession in favour of the plaintiff and decreed the suit. On appeal the learned Subordinate Judge did not try the question of title but has held that the suit was barred by limitation.
5. In second appeal, it is contended on behalf of the plaintiff-appellant that non-payment of rent by a tenant for 12 years does not constitute adverse possession, that the denial of title of the plaintiff's lessors by defendants Nos. 4 to 7 in the rent suit took place within 12 years, though the period (1300-1303) for which rent was claimed in the rent suit was beyond 12 years of the present suit and that limitation should be counted from the date of denial of title and not from 1300 and that the findings arrived at by the Subordinate Judge are not sufficient for the disposal of the question of limitation.
6. I think that the contentions raised on behalf of the appellant should prevail.
7. If the title to the land was with the plaintiff's lessors, and there was a relationship of landlord and tenant subsisting between them and the defendants Nos. 4 to 7 (as to which the learned Subordinate Judge has come to no finding) the mere non-payment of rent for 12 years would not constitute the possession of the latter adverse to the former. It is well-settled that when the relation of landlord and tenant exists between two persons in respect of any property, the mere non-payment of lent, though for many years, is not sufficient to show that the relation of landlord and tenant, has ceased.
8. Nor would the possession of the tenant be adverse until he openly repudiated the tenancy.
9. In the present case, the defendants Nos. 4 to 7 in their written statement in the rent suit repudiated the title of the plaintiff's lessors. But that was within 12 years of the present suit. It is true that a portion of the period, covered by the said rent suit was beyond 12 years of the present suit but the dismissal of the said suit for default cannot, in my opinion, be taken to throw the limitation back beyond the date when the written statement was filed in the suit. There was no adjudication in that suit that there was no relation of landlord and tenant, Assuming that there was a subsisting tenancy between the plaintiff's lessor and defendants Nos. 4 to 7, that relation must be deemed to have continued until the date when the latter denied their landlord's title.
10. It is found, however, that defendants Nos. 1 to 3 realised rents from the defendants Nos. 4 to 7 more than 12 years, and that the list of documents Exhibit E proves conclusively that defendants are in possession for more than 16 years. It is not clear how the list proves conclusively defendants' possession for more than 16 years. However that may be, this payment of rent by defendants Nos.4 to 7 to the defendants Nos. 1 to 3 would not operate as a dispossession of the plaintiffs lessors unless it were made under such circumstances as to amount in law to an eviction of the defendants Nos. 4 to 7 as tenants of the plaintiff's lessor and a termination of their interest under the latter. If defendants Nos. 4 to 7 before the denial of the title of plaintiff's lessors never openly renounced or put an end to the tenancy, the mere payment of rent to defendants Nos. 1 to 3 and attornment to them would not cause dispossession of the plaintiff's lessors nor would affect their title, and the possession of the defendants Nos. 4 to 7 would be still looked upon as the possession of the landlord unless such payments were made under such circumstances as, to amount in law to an eviction of the defendants, Nos. 4 to 7 as the tenants of the plaintiff's lessors. The learned Subordinate Judge should have come to findings on the said points. Then the non-payment of rent; by plaintiffs' lessors to the superior landlords and payment of rent by the defendants Nos. 1 to 3, cannot by themselves constitute dispossession of the former.
11. The fact, however, may be taken into consideration along with other facts on the question of possession.
12. The learned Subordinate Judge finds that a big tank was settled with the Bengal Nagpur Railway Company by the defendants and not by the plaintiff's lessors. But if the tank was included in the tenancy of the defendants Nos. 4 to 7, the settlement of the same with the company during the continuance of the tenancy would not affect the question of possession of plaintiff's lessors.
13. Lastly, the learned Sub-Judge finds that there is clear evidence showing the defendants possession since the time of Srinath without acknowledging by payment of rents or otherwise to the lessors of the plaintiffs.' He has not, however, found the 'time of Srinath.' Srinath appears to have been one of the persons against whom the rent suit by plaintiff's lessors was brought. If so, it was within 12 years of the suit. Besides he has not found whether Srinath or the defendants Nos. 4-7 openly renounced the title of the plaintiff's lessors at any time before the rent suit.
14. Under the circumstances; I think that the case should go back to the lower appellate Court to be re-tried by it after coming to proper findings on the points indicated. Costs to abide the result.