1. This appeal arises out of a suit for a perpetual injunction restraining the defendant from entering a garden alleged to belong to the plaintiff and for the value of fruits appropriated by the defendant.
2. The defence was that the property did not belong to the plaintiff alone, that, the property was held by the defendant as a tenant but that if he was not a tenant, he had been in possession of it for more than 12 years and acquired a statutory title.
3. The Court of first instance held that defendant had acquired the right of a tenant by possession for 12 years and dismissed the suit. On appeal the learned Subordinate Judge disallowed the prayer for perpetual injunction but gave a decree to the plaintiff for damages.
4. The defendants have appealed to this Court.
5. The learned Subordinate Judge says that the defendants asserted their right as tenants for the first time in their written statement in 1907, which was within 12 years of the suit, and, therefore, could not have acquired a right as tenant by adverse possession for more than 12 years. He further says that in a previous suit for damage the Court negatived the assertion that the defendants held as tenants, and that in that view, no right could accrue to the defendants by their mere assertion.
6. But if that is so and if the plaintiff does not accept the position that the defendant had acquired a limited interest by being in possession for 12 years, the question would arise whether the defendants had acquired an absolute right by such possession. The learned Pleader for the respondent tried to meet the position by contending that the acts of the defendants for which the previous suit as well as the present suit were brought were mere acts of periodic trespass, that possession continued with the plaintiff all this time, and that, therefore, there is no question of acquisition of a right to the land, either a limited interest or an absolute interest. It appears, however, from the judgment of the learned Subordinate Judge that there can be no doubt as to his finding that the defendant was in possession of the property. In the first place, he discusses the question whether the defendant was in possession for a period of 12 years or a letter period; and secondly, in dealing with the question of perpetual injunction he says. 'The plaintiff has allowed the defendants to remain in possession of the property, has brought suits for compensation for use and occupation but never tried to eject the defendants.'
7. This clearly Because that the defendants were in possession, because no question of ejectment could arise if the defendants had merely committed acts of trespass as contended by the learned Pleader for the respondent If, therefore, the defendant has been in possession in assertion of a hostile title, either to the extent of a limited interest or an absolute interest, a suit for damages cannot be maintained and the plaintiff, if he is in time, may bring a suit either for recovery of possession or recovery of rent, as the ease may be. The suit as framed must be dismissed.
8. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance restored with Costs here and of the lower Appellate Court.