1. This is an appeal by the defendants in a suit for declaration of title to immoveable property and for recovery of possession thereof with mesne profits. The litigation, which was commenced on the 24th August 1900 and has lasted well nigh for fifteen years, has passed through various stages; but the facts material for the decision of the question in controversy at this the final stage may be briefly recited.
2. The plaintiff purchased an estate sold under the provisions of Section 70 of the Assam Land and Revenue Regulation, 1885, on the 14th February 1890. The sale was confirmed on the 23rd August 1890. The plaintiff asserts that the lands now in dispute are comprised in Mouza Grhora Dumbar included in the estate purchased by him. The defendants contend on the other hand that the lands are comprised in Mouza Pitaboi owned by them; and they concede that they have no interest in Mourn Grhora Dumbar. The Judge has found that according to the that map prepared in 1861 the lands in dispute are comprised within the estate purchased by the plaintiff; but he has also found that the defendants, have been in possession ever since the time of the thak. The question in controversy is, what are the 'rights of the plaintiff as purchaser at a sale under Section 70 of the Assam Land and Revenue Regulation, 1886, as against the defendants? It is not disputed that the plaintiff at the time of his purchase was an unrecorded proprietor of the estate. Consequently, the provisions of Section 71, which lays down that the property sold under Section 70 shall be sold free of all encumbrances previously created thereon by any other person than the purchaser, have no application; for the third clause to the proviso to that Section expressly lays down that nothing in the Section shall apply when the purchaser is a recorded or unrecorded proprietor or settlement-holder of the estate. The rights of the plaintiff must accordingly be determined with reference to the terms of Section 70 alone. That Section is in these terms: When an arrear has accrued in respect of a permanently settled estate or of an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy, the Deputy Commissioner may sell the estate at an auction. On behalf of the plaintiff-respondent, it has been argued that what is sold is the estate and that the purchaser is entitled to take that estate as against the defaulting proprietors. This contention is clearly well-founded. What, then, is the position of the defendants? They have failed to establish that the disputed lands are comprised within their property. They have, however, proved possession for more than 12 years before the date of the revenue sale. Consequently, at the time when the revenue sale took place, they had by adverse possession acquired a good title to the disputed land as against the proprietors of the estate in which it was included. No doubt, they professed to hold these lands as part of their estate; but that could not affect the position of the Government nor effect a division of the estate for revenue purposes. Consequently, on the 14th February 1890, when the sale was held by the Deputy Commissioner, the estate was the property of the original proprietors as also of the defendants who had acquired a good title to a portion thereof by adverse possession. In these circumstances, it is clear from the terms of Section 63 of the Assam Land and Revenue Regulation, 1886, that the defendants were defaulters; and once it is held that they were at the time defaulter; the inference is irresistible that they cannot assert a good title as against the purchaser.
3. The result is that the declaration of title and the decree for possession made in favour of the plaintiff by the District Judge must be maintained. But it is plain that the title to this property has been in great uncertainty, as is amply indicated by the varying fortunes of the parties in different stages of this protracted litigation. This is preeminently a case where no costs should be allowed to the successful litigant, nor mesne profits decreed. While, therefore, we maintain the decree of the Court of Appeal below as regards declaration of title and possession, we vary it in two respects: we direct that each party pay his own costs throughout the litigation and we disallow all claim for mesne profits up to this date.