1. The suit out of which these two appeals arise was brought by the plaintiffs for recovery of possession of certain lands described in Schedule Ga to the plaint, as appertaining to five Mauzas of their permanently settled estates Kismatpara, Majpara, Purbapara, Tarat Kandi and Srirampur. The principal defendant to the suit, viz., the Maharaja of Natore, is the proprietor of two Mauzas, Deara Char Tarapur and Deara Char Bhowanipur, situated somewhere to the north of the five Mauzas of the plaintiffs. The predecessors of defendant 1 took settlement of char Tarapur some time in the year 1868 and of Char Bhowanipur some time in the year 1869.
2. It appears that after the institution of the suit one of the pro forma defendants was transferred to the category of plaintiffs. He is the Maharaja of Kasim-bazar and it is said that his interest in the five Mauzas is four annas. The defendant did not dispute the title of the plaintiffs to the five Mauzas. The only question in dispute was as to whether the lands in suit appertained to the five Mauzas as depicted in the Revenue Survey Map of 1854-1855. The suit was decreed originally partially by the Subordinate Judge on 30th May 1921. Against that decision an appeal was taken to this Court and the decree of the Court below, in so far as it dismissed the plaintiffs' suit, with respect to lands-other than those claimed by the defendants as part of their Deara Char Bhowanipur, on the ground that the plaintiffs had no cause of action, was set aside by this Court and a decree in favour of the plaintiffs was given declaring their title to such lands. The case however in so far as it related to the other lands, that is, the lands which are claimed by the defendants as a part of Deara Char Bhowanipur, was remanded to the Court below, in order that the Secretary of State might be made a party to the suit, after service of notice on him Under Section 80, Civil P.C, and the Court was directed to consider the questions raised in the case including that; of adverse possession of the defendants and the right of the plaintiffs to obtain khas possession as against the tenants defendants and then dispose of the case accordingly. The case went back on remand and the Subordinate Judge has now decreed the suit in respect of the lands claimed by defendant 1 as appertaining to Deara Char Bhowanipur which fall within plaintiffs' Revenue Survey Mauzas Purbapara, Tarat Kandi and Srirampur and also for the lands which fall outside the Deara Char Bhowanipur but are within the Revenue Survey boundaries of Tarat Kandi and Srirampur. The plaintiffs' claim for khas possession as-against the tenants defendants was dismissed and it was held that they were not entitled to get khas possession but possession through tenants defendants. The Secretary of State was not held liable for any cost.
3. Against this decree of the Subordinate Judge dated 10th October 1928 two appeals have been preferred, one by the Secretary of State for India in Council, the number of the appeal being 77 of 1929 and the, other by defendant 1, the number of the said appeal being 84 of 1929. On behalf of the Secretary of State, the learned Senior Government Pleader has raised substantially two question: (1) that the notice Under Section 80, Civil P.C , was defective and consequently his argument was that the suit should be dismissed as against the Secretary of State; and (2) that the claim as against the Secretary of State was barred by the Statute of Limitation. So far as the first ground, viz., the defect in the notice is concerned it is said that the notice is defective as it does not state the cause of action as against the Secretary of State and secondly, as it does not seek for any relief against the Secretary of State. It appears however that the notice which is to be found at p. 100 of the paper-book, in Appeal No. 77 of 1929, states that the Secretary of State will be made a defendant in the suit in respect of the cause of action and the reliefs which are fully described in the annexed copy of the plaint which forms part of this notice. In the plaint the plaintiffs recite that they claim the disputed lands as a part of their permanently settled estates and they allege that the cause of action in the suit arose when the plaintiffs were dispossessed of their lands some time in the year 1911 by defendant 1. So far as they seek a declaration of their title to the lands, which is now the matter in controversy in this appeal, they certainly had a cause of action as against the Secretary of State. The notice may be defective in form but we are of opinion that there was substantial compliance with the provisions of Section 80 of the Code. This ground therefore which is taken on behalf of the Secretary of State must fail.
4. The next ground taken is with reference to the plea of limitation and it is said that on the face of the plaint the suit is barred against the Secretary of State, for according to the admitted case of the plaintiffs the dispossession was in the year 1911 and the Secretary of State was not brought on the record till 17th March 1927, more than sixteen years after the alleged dispossession and it is contended that the Subordinate Judge should have dismissed the suit against the Secretary of State, because on the face of the allegations in the plaint the suit is barred by limitation. To this the plaintiffs-respondents reply by saying that the Secretary of State was not a ' necessary ' party to the suit but was merely a 'proper' party and that the presence of the Secretary of State was necessary for the purpose of effectually and completely disposing of the matter in controversy between the parties. The argument of the plaintiffs respondents is that as their suit is based on dispossession by trespass of defendant 1 who claims a settlement under the Secretary of State, it was not necessary for the plaintiffs to implead the Secretary of State and that the Secretary of State was really joined as a party to the suit for the benefit of the defendants and in such circumstances the Sacretary of State cannot be regarded as a necessary party; consequently the provisions of Section 22, Lim. Act did not apply. Reliance is placed in support of this view on a decision of Sir Charles Farran, C.J., of Bombay in Kashi v. Sadashiv (1897) 21 Bom 229. In that case the facts were that the plaintiff brought a suit in ejectment against the trespasser who claimed title under a settlement from another person and it was held that:
If the plaintiff, in an ejectment suit, can make out a legal title to the land, he is entitled to maintain a suit against the person in actual juridical possession of such land for its recovery without making the parson under whom the latter claims to hold, a party to the suit.
5. A similar view has been taken in other cases which have been cited at the bar, where the distinction between a necessary' and a 'proper' party has been made: see Pandu Vithoji v. Goma Ramji AIR 1919 Bom 84 and Pateshro Partap Narain Singh v. Rudra Narain Singh (1904) 26 All 528, which was carried in appeal to His Majesty in Council and the decision on this point seems to have been affirmed by their Lordships of the Judicial Committee, Imdad Ahmad v. Pateshri Partap Narain Singh (1910) 32 All 241. It is contended in view of these authorities that a distinction must be drawn between a case where a necessary party has been added after the period of limitation and the case where a proper party has been added after the said period. We are of opinion that this is a well-founded distinction and the contention of the respondents must prevail. The true rule in cases of this kind is that when a suit can be, and is, constituted without joining certain persons as parties, and they are subsequently added as parties for the benefit of the defendants to ensure them against further litigation, the suit should proceed though they are added as parties after the expiry of the period of limitation and the Court should award such relief as may be given in the suit as framed: to such a case the provisions of Section 22, Lim. Act do not apply. In support of this view, reference may be made to a number of decisions of different High Courts in India: Guruvayya v. Anant (1904) 28 Bom 11 and Pateshri Partap v. Rudra Narain (1904) 26 All 528, which has already been refened to ; Hazari Mal v. Bhamani Ram (1908) 30 All 538; Thakurmani v. Dai Rani Koeri (1906) S3 Cal 1079 , Annamalai v. Murugappa AIR 1914 Mad 272; Virohand v. Kondu AIR 1915 Bom 272 and Sabduralli v, Sadashiv AIR 1919 Bom 135. There is, it must be recognized, some amount of conflict in some of the cases but the preponderance of authorities is in favour of the view which we have taken. The contrary view was taken in Mathewson v. Ram Kanai (1909) 36 Cal 675 and Shivubai v. Shiddeswar AIR 1921 Bom 152.
6. It appears to us therefore that in the present case the suit could be proceeded against defendant 1, in the absence of the Secretary of State for India. The plaint as framed, was for the recovery of possession against defendant 1 on the ground that he was a trespasser. Defendant I set up the contention that he was holding the lands in question under a settlement from the Government and in order that the question of revenue as between him and the Secretary of State might be decided once for all, the Secretary of State was added as a party to the suit under the direction given by the High Court when directing a remand. It has been therefore strenuously contended on behalf of the Secretary of State by the learned Senior Government Pleader that the Secretary of State is interested and very vitally interested in the question as to whether the lands form a part of the plaintiffs' permanently settled estate or are outside-such estate so as to be liable to be assessed to separate additional revenue in view of the provisions of Act 9 of 1847. It is no doubt true that the Secretary of State is interested in this question but it was not necessary for the plaintiffs to have the question determined in the presence of the Secretary of State, for all that they, the plaintiffs, wanted was that they should recover possession from defendant 1 on the ground that the lands form a part of their permanently settled estate. In a suit as against the lessee who has dispossessed the plaintiffs, it is not necessary for the purpose of the plaintiffs that the lessor should be a party to the suit. It is true that if the lessor is not made a party the decision as against the lessee will not in any way bind the lessor. But the lessor becomes a proper party in view of the final settlement of the question as between the lessor and the lessee, with regard to the possible question of abatement of revenue which the lessee, defendant 1 has to pay to the Secretary of State for this temporarily settled Mauza Char Bhawanipur.
7. It is also a significant circumstance that the plea of limitation was not taker by the Secretary of State. We are not unmindful however of the provisions of Section 3, Lim. Act and although the question of limitation was not set up, there was nothing to prevent the Secretary of State from urging that plea if proper materials were put before the Court. But we find the somewhat indifferent attitude of the Secretary of State in this behalf, an attitude which has rightly been commented upon by the learned Subordinate Judge. The question of limitation is raised at the instance of defendant 1. He claims that as the suit is barred by limitation as against the Secretary of State, for the suit was in time admittedly against defendant 1 as it was instituted in the year 1920, it should also be held to be barred against the lessee of the Secretary of State, viz. defendant 1. We have given our reasons for coming to the conclusion that the Secretary of State might be a proper party for the effectual and complete determination of the question in controversy in the present suit, more particularly for the purpose of the determination of the question of revenue as between defendant 1 and the Secretary of State for the benefit of defendant 1. In such circumstance, we are of opinion that the suit, although on the face of it, was instituted beyond 12 years, as against the Secretary of State, from the date of dispossession, as alleged in 1911, it is not really barred as against him in the circumstances in which the Secretary of State was added as a party in 1927. This disposes of the contention of the appellant Secretary of State on the question of limitation.
8. The learned Senior Government pleader next bases a further contention on the ground of adverse possession for more than the statutory period. With regard to this contention it is to be noticed that this plea was not also put forward by the Secretary of State who was merely content with his defence on the ground of defective notice Under Section 80, Civil Procedure Code, and want of cause of action. But as this question of adverse possession has also been relied upon by the appellant in the other appeal, it will be better to deal with this question when taking up the other appeal. On the question of title, although the Secretary of State was served with the amended plaint along with the notice Under Section 80, Civil P.C, where the plaintiffs distinctly set forth their claim based on the land being part of their permanently settled estate, there was no traverse of the same by the Secretary of State. The learned Government pleader realises that difficulty but he points out, however, that although there was no traverse of the position in connexion with the title taken up by the plaintiffs, in the written statement of the Secretary of State, the Secretary of State did not admit the correctness of the map which was prepared in his absence by the Commissioner who made the local investigation in this case, and he draws our attention to a notice which was given by the Government pleader of Pabna which is to be found at p. 119 of the Part 1 of the paper book in Appeal No. 77 of 1929. That notice is to the following effect:
Defendant 33, that is the Secretary of State, for the purposes of the suit only hereby admits the several facts respectively hereunder subject to the qualifications and limitations, saving all just exceptions as to the admissibility of any such facts or any of them, as evidence in the suit; provided that the admission is made for the purpose of this suit only and is not an admission to be used against the defendants on any other occasion or by another person than the plaintiffs.
9. The facts admitted, which are to be found at p. 120, were these: (1) that Basanta Babu has made a local investigation in this case; this fact was admitted without any qualification or limitation; (2) that Basanta Babu filed the local investigation map; this fact was admitted with this qualification or limitation that the accuracy or correctness of the map was not admitted; and the third fact that Basanta Babu filed a report of his local investigation was admitted with the qualification that the accuracy of the facts stated in the report was not admitted. But no endeavour whatever was made by the Secretary of State to get an order for a fresh local investigation from the Court below. If the Secretary of State was earnest in this behalf it is naturally to be expected that he should have pressed the position which he had taken by the notice which was filed on 12th September 1928, and asked that a local investigation might be made. It has been found by the Commissioner that the lands in suit fall within the Revenue Survey map of the mauza which is admittedly within the permanently settled estate of the present plaintiffs and which will appear from an admission, made in the course of the trial, and that position was not really controverted even by defendant 1 in the suit nor was there any serious attempt made before us to show that the result of the local investigation was in any way incorrect The Subordinate Judge has discussed this question and has summarized his conolusion in these words at p. 134, line 30 of the paper book:
It is now crystal clear from the delineation that the disputed land is the area of' tone Revenue Survey map which is covered by the Deara map also,
10. So far as the question of title is concerned, having regard to the course of pleadings and the result of the local investigation, we are satisfied that the Subordinate Judge has come to a right conclusion.
11. Appeal No. 84 of 1929.-We take up now appeal No. 84. The main contention which has been raised before us is based on the question of adverse possession, viz., on the question that the plaintiffs' right to the permanently settled estate, in so far as the disputed lands are concerned, has been extinguished by adverse possession for more than the statutory period, on behalf of the Government and on behalf of the lessee of the Government. It becomes necessary, therefore, to examine carefully the evidence which has been furnished to establish adverse possession. The burden of proof was undoubtedly on defendant 1 to establish that there has been adverse possession as to extinguish the title of the plaintiffs. In order to have effective adverse possession of that kind, as has been pointed out by their Lordships of the Judicial Committee in the Privy Council in Radha Moni Debi v. Collector of Khulna (1900) 27 Cal 943, adverse possession must be adequate in continuity, in publicity and in extent. (After examining the evidence His Lordship held that the title of the plaintiffs has not been shown to have been extinguished by adverse possession either on behalf of the Government or by the lessee of the Secretary of State, nor his title has been extinguished by the adverse possession of defendant 1, as defendant 1 waived his right by the compromise decree of 1898 and to that extent undoubtedly he was bound. The judgment then concluded.) Therefore we are of opinion that the Subordinate Judge has come to a correct conclusion in the case. It has already been pointed out, and it requires no further repetition, that the Secretary of State has not raised the defence of adverse possession which is pleaded on behalf of the defendants. Having regard to all these circumstances we are of opinion that both the appeals fail and are dismissed with costs to the plaintiffs respondents only, the hearing-fee in No. 84 being assessed at five gold mohurs.
12. I agree.