1. In this case the defendant has set up two defences, first of all it is stated that the land was part of a Miras tenure of which she was the holder and the second was adverse possession. Both the Courts have held that the first ground failed. The question that arises now is as regards the second ground. The Munsif has found that the land was in possession of Sitanath as a tenant up to the year 1313, corresponding to 1906. He also appears to have accepted the case of the plaintiff that Sitanath got this land by inheritance from one Haridas, who is said to have held it as a tenant under the plaintiff. The Munsif then found that the tenancy was abandoned by Sitanath in 1313 and was sold by him. This story of the sale and abandonment has not been accepted by the Subordinate Judge, who finds that Sitanath was not in possession of the disputed land within 12 years before the date of suit, and the account of the sale and abandonment is a got up story. He does not, however, find that Sitanath was never a tenant nor in possession of the land at any time, and on this point reliance is placed by the appellant on the principle stated in the decision reported as Gunga Kumar Mitter v. Asutosh Gossami (1) and some other decision, that a grantor of a subordinate tenure is nut bound to sue for trespasses committed against his tenant during the tenure and that his right of action accrues when the tenancy comes to an end. In order, therefore, to determine this part of the case it is necessary, in the first place, to ascertain whether Sitanath held the tenancy under the plaintiff and what the nature of that tenancy was, and secondly, if Sitanath had such a tenancy when did it terminate. The learned Subordinate Judge does not seem to have realised that the time ran against the plaintiff, not from the date upon which the defendant got possession, but on the termination of Sitanath's tenancy, if that existed. The tenancy might not in fact terminate until some time after Sitanath had lost possession.
2. We must, therefore, set aside the judgment and decree of the Subordinate Judge and remand the case to him for re-hearing after determination of the issues stated above. If it be found as a fact that Sitanath never had the tenancy under the plaintiff, then the claim of the plaintiff for khas possession must be dismissed. Similarly if it be found that Sitanath had a tenancy but that the tenancy terminated more than 12 years before the institution of the suit, then also the plaintiff's claim mentioned must be dismissed. But if it be found that there was a tenancy of Sitanath under the plaintiff and the same terminated within 12 years of suit, then the plaintiff's claim is not barred. With these observations we must remit the case to the lower Appellate Court for re-hearing of the appeal.
3. Costs of this appeal will abide the result of the hearing.