1. This appeal arises out of a suit in ejectment. The land in question was formerly the non-transferable occupancy holding of one Poran Chandra Dey. After Poran's death his heirs sold their interest to Haridas, defendant No. 4, by two deeds of sale--one in 1308 and the other in 1309. Haridas took possession of the land but his transfer was not registered in the landlord's therista but rent was accepted from him and receipts given to him as marfatdar. Haridas continued paying rent up to 1315. He then sold his interest to defendants Nos. 1 to 3 in 1316. After Haridas had left the land, plaintiffs brought a rent suit for the years 1316 to 1319 and obtained a rent decree; and in that suit the plaintiffs made the heirs of Poran defendants. In execution of that rent decree the plaintiffs purchased the holding, but they do not now base their claim to possession of the land on that purchase. After their purchase, from Haridas defendants Nos. 1 to 3 took possession of the land; and when the plaintiffs after their auction purchase tried to take possession of the land, they were resisted by the defendants. The plaintiffs have brought this suit in ejectment. The first Court decreed the suit. The lower Appellate Court held that as the plaintiffs had been out of possession for more than twelve years since Hari Das's purchase, the suit for khas possession was barred by limitation. In coming to that conclusion reliance was placed on the cases of Probhabati Dasi v. Taibaturinessa Chaudhurani 20 Ind. Cas. 664 : 17 C.W.N. 1088 : 19 C.L.J. 62 and Panchkari Chattopadhya v. Maharaj Bahadur Singh 28 Ind. Cas. 708 : 19 C.W.N. 136. But there is one point which distinguishes these cases from the present case. In those cases the same persons had been in possession throughout paying rent as marfatdars or guzratdars for a period of over twelve years. The consequence was, as pointed out in the judgment of the latter case, that the plaintiff was in a dilemma: either the defendants were tenants in which case he could not eject them or else the defendants were trespassers and, therefore, his suit was barred by limitation. In the present case no such dilemma arises, as the plaintiffs can treat Haridas as a tenant and the three defendants as trespassers.
2. It is contended on behalf of the respondents that it has been found by the lower Appellate Court that Haridas was never recognised as a tenant, and it is urged that this is a finding of fact which is conclusive in second appeal. So far as it is a finding of fact it takes ns no farther than what is admitted; that is to say, admittedly the name of Haridas was never entered in the landlord's sherista and the rent receipts given to him were never made out in his name; but it does not follow that because there was no recognition in this manner, therefore, Haridas was not a tenant.
3. It is the plaintiffs' case as stated in the plaint that Haridas held a non transferable ordinary occupancy raiyati jote under the maliks. A person can not hold a raiyoti jote under anybody without being a tenant of that person. It is pointed out that in the first Court the plaintiffs denied the tenancy of Haridas; but it also appears that in that Court the defendants tried to prove the tenancy of Haridas.
4. On the suit as framed the plaintiffs' cause of action arose after Haridas had left the land. The finding that the plaintiffs' suit is barred by limitation is based on a case which was never set up, that their cause of action arose on the purchase by Haridas. As Haridas paid rent to the plaintiff, whether there was recognition or not, he was certainly not a trespasser, and there was no such adverse possession as could he added to the adverse possession of the principal defendants, who appear never to have paid rent or recognized the plaintiffs' superior title in any way. Taking this view of the case, we must hold that the decision of the lower Appellate Court was wrong and that the plaintiffs' suit was not barred by limitation.
5. Except on one other point the findings of the first Court have been accepted by the Court of Appeal below. The one other point is that covered by the twelfth issue of the first Court, whether a certain tank was included in the jama in the name of Poran Chandra Dey or not. As on our finding the defendants will be entitled to khas possession of the jama of Poran, it is unnecessary to decide whether they are entitled to this tank apart from their right to the jama or not. Whether the first Court or the second Court was right in its decision on this point it is not necessary for us to consider. We leave the question open.
6. The result is that the appeal is decreed. The judgment and decree of the lower Appellate Court are set aside and those of the Court of first instance restored. The appellants will get their costs in this Court and in the lower Appellate Court.
7. I agree.