1. This is an appeal by the plaintiffs against the dismissal of their suit by the lower Appellate Court reversing the decree of the trial Court. The suit was brought on the 30th January, 1919 and was one for khas possession of a tank. The plaintiffs and the main defendants claim under the same landlords, it being admitted that the defendants Nos. 23 to 26 have the maliki right in the tank in suit. In 1916, the landlords settled the tank with the plaintiffs. In 1904 it appears that the landlords had threatened the defendants that the tank would be settled with a third party. In 1914 they advertised for settling the tank and at the auction defendants also bid. In these circumstances the contention of the plaintiffs is that the learned Judge has misdirected himself in law in finding that the landlords having been out of possession for over 12 years the plaintiffs' suit cannot be maintained.
2. The case is admittedly one where the defendants are already tenants of the land-lords. The defendants' homesteads adjoin this tank and if the defendants have been in possession of the tank the inference is particularly strong that they have been in possession of it either by some leave or license of the landlords or else under a claim that the tank is a part of the land to which they are entitled as tenants. The learned Judge has dealt with the case on the line of decisions applicable to what is sometimes called adverse possession of limited interest. The learned Vakil for the appellants contests the question whether upon the facts as found by the learned Judge the defendants' possession has been continuous and adverse for the whole of the 12 years.
3. Now, the learned Judge has found that the defendants have always been in possession of the tank in question. It is. quite clear that he means to find against any notion of mere user with leave and license. That matter may be put on one-side altogether. The objection taken to the finding is that as the landlords advertised for tenants and the defendants bid at the auction, this shows that the possession is not adverse in its character That matter may be looked at in one or other of two ways. It may be looked at as a piece of evidence upon the question whether the defendants are in possession claiming to be tenants or whether in possession asserting that the landlords had no right whatever. The learned Judge has found against the question of leave and license on the general facts of the case If the matter be looked at from the point of view of acknowledgment it is quite clear that there was no sufficient acknowledgment under Section 19 of the Limitation Act; and there was no disturbance of possession by the holding of this auction Various motives are possible to explain why the tenants should bid it such an auction and we are wholly unable to find that incidents of this auction show that the learned Judge was wrong in his finding of fact or that he must have misdirected himself on the point of law. It has been contended that in this class of cases the whole question arises under Article 144 of the Limitation Act and, therefore, if it can be shown that at any period the defendant's possession was not adverse the plaintiffs must succeed. Now it is undoubtedly the law that cases of this character are not outside the scope of Article 142. The position is this: if the person encroaching upon other land is not a tenant then the mere fact of his open and continuous encroachment would prima facie be possession adverse to the fullest extent against the landlord. Because he is a tenant, it is presumed in the landlord's favour that the possession is only under a claim of a limited right. Now if the possession is under a claim which is adverse to the landlord though only to a limited extent then for the purpose of the right which the tenant is claiming the possession of the tenant is no longer the possession of the landlord.
4. Article 142 and Article 144 in this case are in no wise in conflict. There is ample authority now for the proposition that the plaintiff in this class of cases coming into Court must show that he has been dispossessed not in the full sense of the word but in its limited sense within 12 years of the suit. This was laid down quite clearly in the judgment of Mr. Justice Mookerjee in Raktoo Singh v. Sundram Ahir (1908) 8 C.L.J. 557 and it was laid down also by the Privy Council in the judgment delivered by Sir John Edge in Dharani Kanta Lahiri v. Gabar Ali Khan (1913) 17 C.W.N. 889. For these reasons it does not seem to us that the law applied by the learned Judge is in any way wrong or that he has misdirected himself in applying it.
5. Now, the only remaining question is this. It appears that in the plaint an alternative claim was made against the landlords for the refund of Salami of Rs. 400 paid to the landlords at the time when the plaintiffs took settlement of the tank. As regards the claim for khas possession the landlords are mere pro forma defendants. But this claim upon which they are substantive defendants has been coupled with the other claim for khas possession. The learned Judge in the Court of appeal below took the matter to be this -having decided that the plaintiffs cannot get khas possession he said that the plaintiffs might then choose to do one or other of the two things. They might choose to accept rent from the defendants or they might sue the landlords for refund of She premium paid to them. He left it to the plaintiffs to make up their mind after the suit had been dismissed as to what they would do. Now it appears that the landlords did not take any part in this case in the lower Appellate Court. It is true that no mention of any intention to take rant from anybody is in the plaint and we do not see that there is any answer before the Court to the claim to have Rs. 400 refunded. This matter in no way affects any question of costs. As between the plaintiffs and the defendants who appear here as respondents the appeal will be dismissed with costs. As against the landlords defendants the appellants must have a judgment in this action for Rs. 400.