1. In this case, the plaintiff, as landlord, brought a suit against the defendant in a somewhat curious form. He asked, first of all, for assessment of rent, on the footing that the defendant was his tenant and had not hitherto been assessed with rent, but was liable to be assessed with rent, and then he went on to ask, in the alternative, that if the defendant denied his title then the defendant should be ejected as a trespasser. I will not stop for a moment to discuss whether such an alternative claim as that is properly, framed. If a person makes an alternative case, then, for the purpose of that]; case, he must make all the necessary assertions to carry the reliefs and he must prove them.
2. However, looking at this as a case of two alternative branches, the first question is whether the suit could be brought, having regard to Section 109, Ben. Ten. Act,, in view of the fact that a previous application for assessment was made under Section 105, Ben. Ten. Act, and that that application was abandoned. Only ones argument has been addressed to us to. show that Section 109 is not a bar to the suit and that argument depends entirely upon the recent Act of 1928 amending the Bengal Tenancy Act. In my judgment, with regard to Section 109j of the old Act there is nothing whatever in that Act to justify the Court in giving it retrospective effect, so as to turn what was an utterly bad suit at the time it was brought, and at the time it was tried, into a good suit. Reference has been made to a very exceptional case before Sir George Jessel, where, under the Conveyancing Act of 1881, he applied the power of the Court to give relief against forfeiture to a case which had been tried prior to the passing of the Act. That was in an exceptional case for a very special reason and there can be no doubt that there is a strong current of authority in all Courts to the . effect that the legislature, prima facie, does not intend for affect rights retrospectively. 1 cannot help observing that I think this Court would be making an extraordinary mess of the rights of the agriculturists of Bengal if it started to apply the 1928 Act retrospectively so as to turn a suit which had been bad at the time it was brought into a good suit that could be decreed' merely because it had been kept in existence for two or three years. So much therefore for the first branch of the plaintiff's case.
3. Then, dealing with the second branch, and apart from the other objections to that case, dealing entirely on the merits, the first question is whether the plaintiff is not barred by 12 years' adverse possession. There can be no doubt that, for some time before 1911, this land had been bought and dealt with as lakhiraj, but in December 1911 there was a final publication of the Record-of-Bights in which the plaintiff's right was recorded, the land being recorded as liable to assessment with rent. This suit was brought just within 12 years after the final publication of that record. The plaintiff contends that although it is clear that this land was claimed adversely to him before 1911, there is no proof that it was so claimed to his know-lodge. He says that there is a doctrine of law that when the land was recorded as subject to his rights there was a tacit recognition by the defendant to that effect, and so he says that, although it is more than 12 years since he knew of the defendant's claim, and although he has done nothing to disturb the defendant's possession, his suit is not time barred. For that doctrine he has relied upon the decision of Stephen and Richardson, JJ., in the case of Aman Gazi v. Birendra Kishore  15 I.C. 64 and certainly the doctrine is there laid down. The learned Judges who decided that case said:
We cannot but consider that on the publication of the Record-of-Rights it was open to the Maharaja to rely upon the entries therein as a tacit recognition of his rights.
4. There had been a previous case [Birendra Kishore Manikya v. Roshan Ali  39 Cal. 453], in which it appeared that, in the course of the settlement proceedings, the defendant claimed the land as rent-free and the plaintiff denied his claim. The learned Judges distinguished that case by saying:
There does not seem to have been any question raised as to the effect of any entries in the Record-of-Rights.
5. These matters came before the Court in at least two other cases, namely Birendra Kisore v. Nabin Chandra  32 I.C. 851 and Kali Mohan Tripura v. Birendra Kisore  31 I.C. 391. In the latter case the decision in Birendra Kisore Manikya v. Roshan Ali was definitely followed.
6. The question is whether the circumstances that the plaintiffs' right was recorded in 1911 is to be regarded as a tacit recognition by the defendant of the plaintiff's right. I am of opinion that it cannot be so regarded and that the decision (1) relied upon is erroneous and should not be followed and that the decisions to which I have referred in the contrary sense are correct. I fail altogether to see why the fact, that in the Record-of-Rights an entry is made deciding the claim in a certain way is to be regarded as a tacit recognition of its correctness on the part of the person whose claim has been overruled. It has been pointed out to us that in the case of Subbaiya Pandaram v. Mohammad Mustapha Marcayar A.I.R. 1923 P.C. 175 decided by the Judicial Committee of the Privy Council, no such effect was given even to a decree of the Court, and, in my judgment, on principle, the contention is unsound.
7. In 1911 the position was that the defendant was claiming to hold this land as lakhiraj, but he certainly was not in a position then, so far as I can see, to prove that he had held the land as lakhiraj openly and adversely to the plaintiff's knowledge for 12 years. The entry in the Record-of-Rights as in 1911 was perfectly right because at that time the defendant had not, so far as we know, completed his title, and yet it is said that because of that entry alone the defendant must begin to make a new start as regards adverse possession before he can complete title as against the plaintiff. I see no merit whatsoever in that contention.
8. In my judgment, therefore, this case has been rightly dealt with by the lower appellate Court and the appeal must be dismissed with costs.
C.C. Ghose, J.
9. I agree.