Asutosh Mookerjee, A.C.J.
1. This is an appeal by the plaintiff in a suit for recovery of possession of land, and in the alternative for assessment of fair and equitable rent.
2. The disputed land was originally chowkidari, chakaran land, which was resumed by the Government on the 27th August 1897 and transferred to the plaintiff and his co-sharers as the Zemindars. Default was thereafter made in the payment of the chowkidari assessment, with the result that the property was sold under the provisions of Act XI of 1859 on the 11th January 1912 when it was purchased by the plaintiff alone. On the 28th January 1915 the plaintiff instituted the present suit.
3. The first defendant contended that he was entitled to remain in occupation by virtue of a tenancy which had been treated in favour of his predecessor-in-interest in 1838 when the land was in occupation of the chowkidar. His vase was that as the settlement was made by the Collector, his position as tenant has not been affected in any way by the resumption proceedings. In answer to this contention, the plaintiff urged that the title of the defendant same to an end as soon as the resumption took plate: and, in support of this proposition, he placed reliance upon the decision in Krishna Kinkar Datta v. Mohunt Bhagaban Das 7 C.L.J. 85 : 12 C.W.N. 161 : 35 C. 185 where the principle was recognized that if chowkidari chakaran lands are resumed by Government and are settled with a Zemindar, all rights created in such lands by the chowkidari in favour of third parties, came to an end, although if a transfer has been made by the Zamindar before the resumption the transferee becomes entitled to the benefits of the settlement, with the Zemindar. See also Ranjit Singh v. Kali Dasi Debi 40 Ind. Cas. 981 : 44 C 841 44 I. A. 117 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : (1917) M.W.N. 459 : 6 L.W. 101 : 2 P.L.W. 1 : 22 M.L.T. 489 (P.C.); prima facie, this decision is applicable to the circumstances of the case before us. It has not been explained -how in 1838 the land could be settled by the Collector so as to bind the Zemindar. The settlement by the Collector must be deemed to have been made on behalf of the chowkidar then in occupation, Consequently, the tenancy right created by the Collector came to an end when the land was resumed, enfranchised and transferred to the Zemindar.
4. But this conclusion is of no real assistance to the plaintiff. As we have already stated, the resumption took place on the 27th August 1897, and thereupon the plaintiff and his co-sharers became entitled to eject the defend-ants. They did not, however, take any steps in that behalf, with the result that on the 27th August 1909 their title to obtain possession of the land became extinguished by the operation of the law of limitation, as the defendants, by lapse of time acquired a prescriptive title to the status of a tenant Man Chandra Mitter v. Raja Ramranjan 2 C.L.J. 125.; Roktoo Singh v. Sudhram Ahir 8 C.L.J. 557; Icharan Singh v. Nilmoney Balidar 35 C. 470 : 7 C.L.J. 499 : 12 C.W.N. 636; Probhabati Dasi v. Taibaturnessa 20 Ind. Cas. 664 : 19 C.L.J. 62 : 17 C.W.N. 1088; Panchkari Chattapadhya v. Maharaj Bahadur Singh 28 Ind. Cas. 708 : 19 C.W.N. 136; Birendra Kisore v. Laksmi 30 Ind. Cas. 896 : 22 C.L.J. 129; Ujir Ali Sardar v. Shadhai Behara 68 Ind. Cas. 1003 : 35 C.L.J. 188. The subsequent sale under Act XI of 1859 is of no avail to the plaintiff, because the plaintiff himself was a defaulting proprietor : and, when a defaulting proprietor purchases at a rule under Act XI of 1859, he acquires under Section 53, the estate subject to all its encumbrances existing at the time of sale and does not acquire any rights in respect to under-tenants or raiyats which were not possessed by the previous proprietor at the time of the sale. Consequently, on the 11th January 1912, when the plaintiff became purchaser at the sale under Act XI of 1859 he acquired no better title than he had on the 27th August 1909. The result, therefore, is that the plaintiff's title to eject the defendants must be deemed to have been extinguished. We dismiss the appeal on this ground. The Question of the rent to be assessed in respect of the land in occupation of the defendants has been left open for a subsequent suit. We do not interfere with that part of the judgment.
5. The appeal is dismissed with costs.
Ernest Fletcher, J.
6. I agree.