1. The plaintiffs brought the suit out of which this appeal arises under Section 106 of the Bengal Tenancy Act to have a certain entry in the record-of-rights corrected. The subject matter of the suit appears to be a two-storied building with the tank and orchard round it and some tenanted lands, the area of the whole being some sixty bighas. The building and the tank appear to be in the centre of a village which has become a municipality. The record-of-rights treated the matter thus That these lands were in the possession of the plaintiffs and that they were liable to be assessed with rent by the zemindars. Now the plaintiffs themselves are fractional owners of the zemindary and the contesting defendants come in by purchase of an eight-anna interest in the zemindary, the purchases having been made somewhere between 1287 and 1290 B.S. The case made by the plaintiffs is that there was an old Brahmattar grant made in 1165 B.S. to one Annada Prosad Mookerjee, that his son was Durga Charan Mookerjee and his grandson was Guru Charan Mookerjee, that Guru Charan died some time before 1287 B.S. and that he had a son called Annada Charan Mookerjee. The plaintiffs say that by a kobala dated 1296 B.S., their predecessors-in-interest, namely, Satindra Nath Roy Chowdhury and Girija Nath Roy Chowdhury took from the executor of Annada Charan Mookerjee's estate the Nishkar right which had been in this Brahmin family for a very long time. The learned Munsif adopted the view of the plaintiffs. He was satisfied with the evidence of a Taidad as to the existence of the ancient grant; in his opinion, the premises were known as Guru Charan Mookerjee's Bangabari; and he came to the finding that Guru Charan had built the house himself. He was clearly of opinion that no rent had ever been paid to the zemindars in respect of this house, tank, orchard or tenanted lands. The view of law upon which he proceeded was that no doubt the purchasers under the kobala being the plaintiff's predecessors and being co-owners of the estate, exclusive possession by them of the suit land would not amount to adverse possession, but in this case the plaintiffs had succeeded in tracing back the possession to Guru Charan and his possession without any stipulation for payment of rent was undoubtedly adverse to the proprietors of the estate. On appeal the learned Additional Subordinate Judge of Khulna took a very different view. He was not satisfied either with the evidence of the ancient grant or with the evidence by which the plaintiffs deduced their title from the grantee of the Sanad of 1165 B.S., namely, Annada Prosad Mookerjee to Guru Charan Mookerjee or his son Annada Charan Mookerjee. He thought, moreover, that the kobala of 1296 B.S. was not proved to make a valid grant because Annada Charan's will was not properly proved and that there was no proof of permission of the District Judge to sell. Therefore, he was not satisfied that the kobala effected anything.
2. In addition to that, however, and in the Course of stating that opinion he said 'The plaintiffs or their predecessors get no right under the kobala even if it be conceded for the sake of argument that the alleged consideration Rs. 2,300 were paid, though the evidence as to the payment of the alleged consideration is not at all satisfactory'. In that way, the learned Judge finds that the plaintiffs have not succeeded in making out their claim under the alleged ancient grant, and on that it is not, in my opinion, possible for us to differ from the finding of the learned Judge. It is a question of fact whether the title has been deduced by proper evidence from the first holder to the last holder. I must observe, however, that I do not take this judgment as being a clear or proper finding to the effect that the kobala was an unreal, collusive or colourable document If one is dealing with a document some thirty-five years old, the mere fact that proof of consideration is not at all satisfactory is by itself a slender ground for holding that the document known to have come into existence was entirely unreal.
3. When the learned Judge comes to the question of adverse possession, his view is this First of all, he says, that Guru Charan was related to the plaintiff's branch of the Roy Chowdhury family. It appears that at one time the plaintiff's predecessors were two brothers called Radhanath and Prannath, that Radhanath had a son called Kasbi and that Guru Charan married Kashi's daughter. So that Guru Charan was a son-in-law of one of the plaintiffs' predecessors. Having stated that, the learned Judge says Guru Charan Mookerjee being a mere relation of the Roy Choudhuries was allowed to live in the house without payment of rents. The fact that Guru Charan or his son Annada Charan was allowed to live in the Bari and enjoy the attached tank and garden without payment of rent did not and cannot create any Nishkar right in either of them. His view is that when the contesting defendants purchased their present interest the plaintiffs' predecessors seeing that it was passing to the hands of strangers got a kobala from the executor of Annada Charan and that explains the document of 1296 B.S.
4. On this appeal, it has been pointed out, first, that the learned Sub-Judge omitted one prayer for relief which had been granted by consent or at least without opposition namely, that a certain plot No. 2496 should be declared as in the khas possession of the plaintiffs. Putting that on one side, the first objection taken to the judgment of the lower Appellate Court is that the onus of showing that these lands are mal is upon the defendants. However that might be in other circumstances, I am of opinion, that, in a suit to correct an entry in the record-of-rights, that proposition does not hold good and cannot be applied. The main point in the appeal is as to the question of adverse possession and, on this part of the case, it appears to me that the learned Judge has not properly directed himself in law in dealing with this matter. To begin with he has not, so far as I can see, appreciated the fact that the suit lands include certain tenanted lands. He has not dealt with or reversed the finding of the trial Court that Guru Charan himself built the two-storied house. Upon the basis that Guru Charan was a son-in-law of Kashi Nath, he simply finds that he and his son were allowed to live in the house without payment of rent. In my judgment, there is no proper finding either that the kobala of 1296 B.S. was a merely colourable transaction. Looking at the matter, therefore, from the proper point of view, it seems to me that one has here to remember that, according to everybody's case, for well over forty years, possession free of rent had been, first of all, in the hands of the Mookherjees and afterwards in the hands of the plaintiffs' predecessors claiming title under the Mookherjees. That finding which is incontestable on either judgment cannot, in my opinion, be got rid of by resort to the doctrine of leave and license. The basis of the defendants' case is not that the record-of-rights should have been to the effect that the house and the tank and the orchard were in the khas possession of the zemindars as a whole, still less that the tenanted lands should have been recorded simply as a tenure under the 16-annas zemindars, but that the plaintiffs, though they be fractional owners of the zemindary interest, have a quasi tenant right of some sort. The question is whether it is liable to assessment for rent or is not liable to assessment for rent. But it is common ground that the plaintiffs have a holding and that is the meaning of the record-of-rights. That being so, mere leave and license in no way explains the positions, specially as the position has been maintained forever 40 years. In my judgment, the suggestion of leave and license being put on one side the question then is thisIs it plain that Guru Charan and his son Annada Charan, who were in no way interested in the zemindary, maintained themselves on an important piece of property including tenanted land, having no right, as against the co-sharers other than the plaintiffs' predecessors and without claiming any right at all? It seems to me that the fact that the present defendants are absentee landlords in no way enables them to brush on one side open and apparent possession by persons who were not co-sharers in the zemindary nor does it enable them to get out of the fact that the plaintiffs, having a right other than their zemindary right ex concessis did so long ago as 1296 B.S. purport to shelter themselves under the right of the Mookerjees. For these reasons, it seems to me that this appeal should be allowed and the judgment of the Munsiff restored with costs in this Court and in the Lower Appellate Court.
5. This appeal arises out of a suit for a declaration that a certain entry in a record-of-rights prepared under the Bengal Tenancy Act is erroneous. It has been recorded that the lands in dispute are in the possession of the plaintiffs and are mal lands of the estate which are liable to assessment for rent but the plaintiffs say that no rent is payable for them. Some of the lands are recorded as being in the possession of tenants under the plaintiffs. There is a prayer with regard to one plot of land that it should be recorded as in the khas possession of the plaintiffs and not in the possession of tenants. This last prayer was allowed by the Munsif. With regard to this last prayer, it is not necessary to refer to it again having regard to the decree that we propose to make. The plaintiffs allege, first, that these lands are their Niskar property not liable to pay rent and, secondly, that they and their predecessors-in-interest have held these lands as Nishkar for long over 12 years and thus they have acquired a right to hold them without payment of any rent, and, therefore, the lands are not liable to assessment. The plaintiffs are owners of five-annas share in the zemindary and the contesting defendants are owners of eight-annas share. The owners of the other shares do not appear to contest the suit. The disputed lands consist of a house, a tank, a garden and some tenanted lands. The plaintiffs allege that these belonged to one Guru Charan Mookerjee and after him to his son Annada Charan Mookerjee as Niskar Brahmattar, and they claim by right of succession from the purchasers of the property, who bought it from the executor of Annada Charan Mookerjee by a kobala dated 1890. They say that they also held these lands as Nishkar without payment of any rent. The contesting defendants acquired their shares by purchase in 1881 and 1883. The Munsif made a decree entirely in favour of the plaintiffs. On appeal by the contesting defendants the Subordinate. Judge has reversed that decision.
6. The Subordinate Judge has dealt with two points in his judgment: first, whether the plaintiffs have their alleged Nishkar right by virtue of purchase under their kobala, and, secondly, whether they have acquired Niskar right by virtue of adverse possession. It is not necessary for me to examine in detail the decision of the Subordinate Judge on the first point. But I must observe that his view that a sale by an executor without the permission of the Court is void is erroneous having regard to Section 90, Sub-section (4) of the Probate and Administration Act. A stranger cannot question the validity of such sale on the ground of want of permission of the Court nor can a stranger attack the validity of the kobala on the ground that consideration for the sale was not paid to the vendor.
7. The important question in this case is whether the plaintiffs have acquired a right to hold the lands without payment of rent by virtue of adverse possession. In dealing with this question, the Subordinate Judge states: 'The contending defendants are admittedly absentee zemindars. There is no evidence worth the name to show that the plaintiffs or their predecessors ever set up adverse claim by Nishkar right to the knowledge of the defendants or their 'agents.' Apparently, this means, as has been argued by the learned vakil for the respondents that the plaintiffs being co-sharers with the defendants in the zemindary their possession should be considered as possession of, and on behalf of all the co-owners in the zemindary. The proposition so broadly stated does not seem to represent the correct rule. With regard to a similar contention put forward, Viscount Cave observed, in delivering the judgment of the Privy Council in the case of Varada Pillai v. Jeevarathammal (1919) I.L.R. 43, Mad. 244; L.R. 46, I.A. 285, 292 'This contention was founded upon the English rule of law which was abrogated by the Statute 3 & 4 Will. 4, c. 27, Section 12, that the possession of one of several coparceners, joint tenants or tenants in common, is the possession of the others so as to prevent the Statutes of Limitation from affecting them. Whether this rule is applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it is unnecessary for the purpose of the present case to decide; for upon the facts of the case the rule has no application. The limits of the rule were defined in Culley v. Doe d. Taylerson (1840) 11 A. & B. 1008 as follows: 'Generally 'speaking, one tenant in common cannot maintain an 'ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster... and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.' The matter, however, in this case does not rest there. The property has been found to have been in the possession of the Mookerjees previous to the date when the plaintiffs came into possession. The Mookerjees built the house; the Mookerjees realised rents from the tenants; they had no interest in the zemindary. Their possession must be considered to be prima facie adverse to all other persons. But it is contended on behalf of the respondents that the finding of the learned Subordinate Judge that the Mookerjees were allowed to remain on the land with the permission of the Roy Chowdhury zemindars, who were their relations, should be construed as a finding that the Mookerjees were in possession as licensees of the plaintiffs' predecessors-in-interest. Then it is argued that as the possession of the Mookerjees as licensees could not be adverse to the plaintiffs, the possession of the Mookerjees should be considered to be the possession of the plaintiffs, and the plaintiffs being co-sharers of the contesting defendants the possession of the Mookerjees should be considered as the possession of the defendants. This, in my judgment, would be to super-impose a fiction upon a fiction and cannot be accepted. It may be that a part-owner is entitled himself to take possession of joint property and hold it on behalf of his co-owners, but it is settled law that a part-owner cannot bring a stranger on a property belonging to himself and his co-owners without the consent of the other co-owners. If such a person is brought on the land by one co-owner, the others would be entitled to sue in ejectment such person at once to the extent of their shares. The possession of the Mookerjees, therefore, must be considered as adverse to the defendants and the plaintiffs having come into possession through the Mookerjees must be taken as holding these lands adversely to the defendants. The fallacy of the contrary position would be apparent from the fact that it cannot be asserted in any way that the Mookerjees realised rents from the tenants in possession of portions of the disputed land on behalf of the co-owners of the zemindary.
8. Another question arises on the facts of this case. It has been recorded that the plaintiffs are in possession of the lands in dispute. It is not alleged on behalf of the defendants that the plaintiffs are in possession by right of their being co-owners in the estate. If they had done so then their claim to assess rent on the land would be quite at an end. This right to assess rent can be claimed only on the ground that the plaintiffs have some sort of tenancy right for which they are liable to pay rent. The possession of the plaintiffs must, therefore, be considered as possession on their own behalf to the exclusion of their co-sharers in the zemindary.
9. Then the question is, if the plaintiffs are in possession of: the lands on their own behalf, what should be the starting point for the period of limitation for assessment of rent with regard to these lands. It must be at least, from the time when the plaintiffs or their predecessors came into possession of these lands, and that is long before 12 years of the suit. On this question, reference may be made to the case of Abhoy Charan Pal v. Kally Pershad Chatterjee (1880) I.L.R. 5 Calc. 949 where it was held in such a case as this 'that, although the onus of proof lay on the plaintiff, it was not necessary for him to prove that the lands claimed by him to be held as lakheraj had been held rent-free 'from before the date of the Permanent Settlement 'but it was sufficient for him to prove that the 'defendant was, at the time of the institution of the 'suit, debarred by lapse of time from instituting a 'suit for the resumption or assessment of rent upon the 'land'. It must therefore be held that the plaintiffs have acquired a right to hold possession without payment of rent by lapse of time.
10. One other small point was urged on behalf of the respondents that the suit being for a portion of the lands included within a bigger area is not maintainable. This question does not appear to have been raised in the issues or at any subsequent stage in the trial Court but it finds a place towards the end of the judgment of the Subordinate Judge. It appears to me that there is no substance in this objection.
11. On all these grounds, I agree that this appeal and the suit of the plaintiffs should be decreed, that the decree of the Subordinate Judge should be set aside and that of the Munsif restored with costs.