1. This appeal is by the defendants. The suit was one for khas possession. The plaintiff, who is the landlord, alleged that one Isa Sheikh, an occupancy raiyat, was the original tenant until 1319, that he then abandoned the holding and when the plaintiff went in 1320 to take khas possession, he was resisted by the defendant who alleged that he was a purchaser from Isa Sheikh. The holding in question was not a transferable one. The defence was that Isa had left the holding more than 12 years before the institution of the suit, the first defendant's wife having purchased the holding from him in 1311, and after her death the defendants, her heirs, possessed the land and paid rent to the landlord in the name of the old tenant, therefore, they were not liable to be ejected, and the suit was barred by limitation. Both Courts decreed the suit.
2. The facts found are that Isa sold this holding 12 years and 3 weeks before the institution of the suit, the defendants and their predecessor have been in fact in possession since then, but the plaintiff was not aware of this till at most 5 years before the institution of the suit. The defendants alleged a tender of rent to the plaintiff in 1318, and though the Appellate Court has not definitely come to a finding whether that story is true or not, at any rate this much is found that before that the plaintiff was not aware of the transfer and of the defendants' possession. There is also a finding by the first Court, which is not touched by the Appellate Court, that for the years 1313 to 1316 the plaintiff got a decree for rent against the original tenant Isa. The rent decreed was deposited in Court and on that occasion the defendants did not ' attempt to prove that the deposit was made in his name' (which I take to mean that the defendants did not try to prove that they made the deposit) or that at that time any plea of the transfer of Isa's interest was made. The first Court also found that the defendants never tried to get recognition from the plaintiff, a finding with which the Appellate Court did not interfere. On these findings the Courts have held that the suit was not barred by limitation.
3. The question of limitation is again raised before me. Though it is called a question of limitation, it is presented as a plea of adverse possession, that is that by continuing in possession for over 12 years the defendants have acquired the limited interest of tenants. The learned Vakil for the appellants has referred to two cases to show that the question of the landlord's knowledge of the transfer is immaterial and that to succeed he has to make out facts sufficient to establish a case within Section 18 of the Limitation Act, that is, that he has been kept out of the knowledge of the right to sue by fraud till within the period of 12 years before suit.
4. The first of the two oases referred to is that of Probhabati Dasi v. Taibaturinessa Chaudhurani 20 Ind. Cas. 664 : 17 C.W.N. 1088 : 19 C.L.J. 62 In that case it appears that rent was actually paid by the transferee, though it was paid in the name of the original tenant, while receipts known as marfatdari receipts were given in which the name of the transferee appeared as the person actually paying the money. In that case it was remarked that ' the right to recover must be by reason of forfeiture or abandonment; whichever it be, this event occurred vary many years more than 12 prior to the commencement of the suit and there way of overcoming this bar would be by establishing a case within Section 18 of the Limitation Act.' The other case is that of Panchkari Chattapadhya v. Maharaj Bahadur Singh 28 Ind. Cas. 708 : 19 C.W.N. 136, The case was decided on the authority of the earlier cited case. The statement of facts shows that the case was based on the theory of abandonment and it was found that the transferee had been openly in possession of the land ever since the purchase and had been paying rent to the landlord's officers who had given him receipts describing him as guzratdar.
5. The learned Vakil for the respondent distinguishes these oases from the present case in this way. He argues that the right of the landlord to re enter depends on the question whether there has been abandonment or not and that means abandoment within the meaning of Section 87 of the Bengal Tenancy Act, also that in the present case there has been no abandonment until within the period of limitation. Of course it is only on the theory of there being abandonment that the landlord can re-enter and unless that abandonment took place 12 years before suit, the principle of the two cases cited would not apply. In the present case there is no finding as to the abandonment having taken place more than 12 years before suit. On the contrary, as I have already stated with reference to the facts found, it appears that the money decreed in the rent suit was deposited in the name of the original tenant and there is nothing to show that it was deposited by the defendants, even though in fact they were in possession. Consequently it has not been shown that the abandonment within the meaning of Section 87 of the Bengal Tenancy Act took place more than 12 years before suit.
6. This is enough to dispose of the matter, but I may point out that in another case of this Court, the case of Probhubati Dasi v. Taibaturinessa Chaudhrani 20 Ind. Cas. 664 : 17 C.W.N. 1088 : 19 C.L.J. 62 was distinguished, that is, Second Appeal No. 803 of 1914. That was an appeal from a judgment in which the learned District Judge had referred to that case and to the oases of Deb Narain Dutt v. Baidya Nath 2 Ind. Cas. 148 : 14 C.W.N. 68, Tarak Das Pal Chowdhury v. Harish Chandra Banerjee 16 Ind. Cas. 977 : 16 C.L.J. 548 : 17 C.W.N. 163. When the matter came before this Court, the learned Judges remarked that the Additional District Judge had omitted an important item which appears in those decisions, namely, that the land must know of the transfer to the purchase.
7. It is hardly necessary to refer to a further argument that has been advanced, which has considerable force, and that is that to establish a case of adverse possession, the adverse possession must be adequate in continuity, publicity and extent. Obviously the element of publicity is wanting if the landlord was not aware of it, and if the element of publicity is wanting the element of extent is also wanting [Ram Chandra Sial v. Ramanmani Dasi 36 Ind. Cas. 890 : 20 C.W.N. 773].
8. I think the learned Subordinate Judge puts the matter quite correctly when he says the period of limitation runs from the date when the tenancy of the plaintiff's tenant, that is, the vendor of the wife of defendant No. 1, came to an end and the adverse possession for the defendants commenced, and he finds that the adverse possession commenced in 1319. That being so, the case of adverse possession is not made out.
9. The appeal fails and is dismissed with costs.