1. Taluk Hari Narayan was originally one property. It was subsequently divided into three separate Taluks, Taluka Hari Narain T. No. 75, Taluka Gauripria T. No. 76, Taluka Rampria T. No. 77. These three taluks lay to the east, north and west of a Government khas mehal named Uddamdi No. 37. There was a river named Goomti or Titas between the khas mehal and these taluks. This river shifted northwards and cut away the lands of the three taluks and as the river receded, these diluviated lands have reformed and the present suit is in respect of lands reformed in. situ of the three Taluks Nos. 75, 76 and 77.
2. The Government khas mehal No. 37 was from time to time settled temporarily with the proprietors of the three taluks until 1885 when it was sold for arrears of revenue and purchased by one Bango Chandra Gope as the benamdqr of the contesting defendant who in return for his services gave him an one-anna share in the purchase. We may take it as the result of the findings as admitted at the bar that the possession of the contesting defendants became adverse to the owners of Taluks Nos. 75, 76 and 77 in respect of the disputed lands which they claimed as parts of their newly purchased mehal khas, mehal No. 37, from the year 1835. In this state of things, the residuary share of Taluk Hari Narain No. 75 was sold for arrears of revenue in 1892 and purchased by the predecessors-in-title of the plaintiffs who subsequently purchased the entire Taluks Gauripria and Rampria in 1894.
3. The present suit was brought just within 12 years of the purchase of the residuary share of taluks Hari Narayan by the predecessors-in title of the plaintiffs and the main question in this appeal is whether the suit, so far as that taluk is concerned: is barred by limitation. It is admitted that the sale was under Section 54 of Act XI of 1859. The section says the purchaser shall acquire the share or shares subject to all encumbrances and shall not acquire any rights which were not possessed by the previous owner or owners. The learned Judge has held that, on the principle laid down in the case of Kalanand Singh v. Sara fat Hussein 12 C.W.N. 528 the purchaser 'becomes entitled to recover possession of the share in the same manner in which the former owner would have done. * * i.e., the time of adverse possession which has run against the former owner counts against him also.' If this view of the law were correct, the adverse possession commencing from 1885 had run for about 7 years up to the date of sale in 1892 and the plaintiffs would have about 5 years more to bring their suit and the suit would be barred as it was not brought within that time. It is necessary, therefore, to examine whether that view of the law is correct.
4. The case of Kalanund Singh v. Sarafat Hussein 12 C.W.N. 528 does not lay down the rule derived from it by the learned Judge. There is an observation that the purchaser 'steps into the shoes of the former owner and becomes entitled to recover possession in the same manner in which the former owner would have done,' but the next observation is-'It follows, therefore, that whether the adverse possession is completed before or whether it is completed after the date of default, the purchaser at the revenue sale in either case becomes entitled to the possession of the share.' It does not lay down that if time has begun to run against the former owner, it will continue running against the purchaser and it could not lay down such a rule as the adverse possession had in that case been completed before the sale.
5. It is contended that the last part of Section 54 indicates that the purchaser can get no rights not possessed by the defaulter at the time of the sale. That part of the section has been interpreted, however, in the case of Annoda Per shad Ghose v. Rajendra Kumar Ghose 6 C.W.N. 375 as meaning that the purchaser shall Dot acquire any right not possessed by the previous owner at any time. The same view was held in the case of Bhawani Koer v. Mathura Prashad 7 C.L.J. 1. The purchaser purchases the share and not the right, title and interest of the defaulter. In the case of a sale of a share in the possession of a Hindu widow, it was contended that only the life-interest passed: this contention was, however, overruled. See Bebi Das v. Bipro Charan 22 C. 641; Banalata Dasi v. Monmotha Nath Goswami 11 C.W.N. 821. It is not contended that possession for less than 12 years is an encumbrance bat that as the sale was admittedly subject to encumbrances, th6 plaintiff claims from or through the defaulter and the adverse possession against the defaulter was adverse against the plaintiff within the meaning of Article 144 of the second Schedule to the Limitation Act. We do not find any authority for this proposition. In respect of sales of entire estates and tenures free of encumbrances under the Sale Law, it has been held that the purchaser does not claim from or through the defaulter and is bound neither by his acts nor by his laches: Moonshee Buzlool Rahman v. Pran Bhun Dutt 8 W.R. 72 and see Waston & Co. v. Nobin Mohun Baboo 10 W.R. 72; Nuffer Chandra Pal Chowdhury v. Rajendra Lal Goswami 25 C. 167; nor is he bound by any judgments binding on him: Radha Gobind Koer v. Rakhal Das Mukherji 12 C. 82; Gadadhar Bose v. Radha Charan Poddar 34 C. 868. If the purchaser of an estate free from encumbrances under Section 37 is not a person claiming from or through the defaulter, the person who purchases a share subject to encumbrances under Section 54 is also not a person claiming from or through the defaulter. Subject to the restrictions imposed by the statute, each of them par-chases the property sold by the Collector and claims under a paramount title not derived from the defaulter--but obtained, so to say, adversely to him. In a suit for possession by him, when he has never been in possession after his purchase, the defendant must show that his possession has been adverse to him for more than 12 years. This the defendants have admittedly not shown. In this view of the law, the suit of the plaintiffs is not barred by limitation and the appeal must be allowed and the suit of the plaintiffs decreed with costs in both Courts. They will recover the lands in suit according to the boundaries laid down by the Commissioner except the 5 kanis covered by the amaldari.
6. The defendants' Appeal No. 546 has not been pressed and is dismissed without costs.