1. These appeals arise out of suits for khas possession of the land in dispute in each case which had been allotted on a partition of an estate effected by the Collector as between the plaintiffs and the defendants The partition was made on a rayatwari basis but the lands were in the exclusive possession of the defendants who were also co-sharers of the estate in which the lands in dispute are situate.
2. The defendants pleaded inter alia that the plaintiffs were not entitled to get khas possession of the lands as the defendants had a chak right, or a tenancy right by adverse possession for more than twelve years.
3. The Court of first instance decreed the suits on the grounds that the defendants had failed to prove the chak right and as co-sharers did not acquire any right by adverse possession. On appeal tie learned District Judge reversed that decision and the plaintiffs have preferred these appeals.
4. The history of the case leading up to the suits is a long one and has been ex-h ustively dealt with by the Court of appeal below It appears that Mouza Kalaipar, where the lands are situated, formed part of two Estates Nos. 115 and 116, and at the time of the Permanent Settlement were held by two Muhammadans. There were quarrels between their descendants in consequence of which the estates were attached under Regulation V of 1812 and a Kroke Sarbarakar or Receiver was appointed. Sometime after, they settled their disputes and filed sulehnamas in the Collect orate showing that they made an amicable partition. The Receiver was thereupon discharged in 1826. The estate then passed to a number of Hindu proprietors; there were disputes as to possession among them, and the property was again attached, and a Receiver appointed under the Regulation. The Receiver held a measurement of the lands of the villages and the chitta, Exhibit 32 A, shows that 30 puras (about 100 bighas) were measured in Mouzah Klaipur in the name of Bhrigu Ram Chakladar, the grandfather of the Chakladar defendants as his khamar and Bhadrasan lands, and some other khamar lands in the possession of other proprietors. The present suit relates to about 1,000 bighas of land. Exhibit 32A, however, appears to be a measurement of the lands of only one of the sahams which belonged to one Abdul Basid. This chitta goes against the chak, or tenancy right of the defendants, as it describes the bind as tie khamar and Bhadrasan land of Bhrigu Ram. Two years later, however, the Receiver real Sid Rs. 84 and odd from Bhrigu Ram by distress under Regulation VII of 1799 which related to recovery of rent with the power of distraint. Bhrigu Ram brought a suit in the Civil Court for the refund of the amount which, he said, was real Sid in excess of the amount due from him by illegal distraint. In that suit Bhrigu Ram claimed a chak-patm right to the lands, and some of the proprietors denied that he had such right in the lands.
5. The suit was ultimately decreed on the ground that the distraint was bad by reason of non-service of the usual notices, but the question of the chak right, or the extent thereof, was left undecided in the final stage of the suit.
6. The learned Judge points out that the Receiver having taken proceedings under Regulation VII of 1799 admitted some sort of tenancy right of Bhrigu in spite of his own chitta of 1840.
7. In 1849 one Sib Nath, who had become the purchaser of a share of Mouzah Shilashi, (of which K laipar formed a part), and who had obtained possession of his share of some lands, brought a suit for possession of a share in the remaining lands, viz., 1,000 puras. All the proprietors of the estate were made party defendants to that suit. The estate then was in the hands of the Receiver, but pas session was with Bhrigu Ram and some others. Bhrigu Ram in his written statement filed on 31st July, 1850 claimed to be in possession of the lands by chak right under four sanads, from before he acquired interest in the estate. It is not disputed that the boundaries of land in that suit cover the lands of the present suit. Sib Nath's suit was ultimately dismissed for want of prosecution, and although an issue was raised regarding the chak right, no decision was come to on the point in the judgment dated the 28th April, 1854 The judgment, however, is important as it contains an open assertion in the presence of a lithe proprietors of the estate. Then came the chak proceedings in 1854 and Bhrigu Ram's widow was recorded as being in possession of the major portion of the lands.
8. In 1860 Kali Mohan Bal, the predecessor of the plaintiffs, applied for partition of Estate No. 115 and the Chakladars at once Setup their chak rights, and asked that their chak lands might he kept under all the landlords. 84 puras were, as a matter of fact, recorded as chak without any objection by any of the proprietors, and a saham of the same was actually made, but in 1865, the Board of Revenue vetoed the partition as there was no provision in the Regulation of 1814 for the partition of ijmali estates. Though the partition fell through, it is clear that the chak right was asserted in the presence of all the parties and was recorded in a portion without any protest from anybody.
9. In 1856, the property was released from attachment and the Receiver was discharged. In 1874 Kali Mohan Bai brought two suits for joint possession of lands of some Mouzahs other than Kalaipar (against the Chakladars, f.nd the other proprietors were made parties to the suit) denying the previous partition made by the Muhammadan proprietors. They ultimately succeeded in the High Court (in 1877), the previous partition being negatived.
10. In 1878, Kali Mohan Bal brought a suit for possession of certain lands, including the present disputed lands, on the allegation that the Chakladars were holding the lands wrongfully under the assertion of chak right. Simultaneously with that suit, ten other suits were brought by ten other co-sharers, including Jyotirmoyi, the mother of the Chakladar defendants, tor declaration of their shares and for partition of Estate No 115. In her suit for partition Jyotirmoyi mentioned her chak right but did not bring it under partition as it was a subordinate interest. In the suit by the Bals Jyotirmoyi set up her chak right and gave the boundaries of the lands in her possession as were given in Sib Nath's suit. The area of the village was stated to be 250 puras the whole of which the plaintiffs, the Bads said, were in the possession of the Chakladars under the assertion of chak rights and they sued for possession of their share. An issue as to the chak right was raised but was not decided. It was held that Kali Mohan Bal could not get possession of specific lands until partition which was the subject-matter of the ten suits brought by the other proprietors, but in the partition suits also there was no decision as to the chak rights. The suits were disposed of with a declaration of the shares with the right to hive the estate partitioned by the Collector.
11. After the decision of the suits, the Collector was moved and a partition of the estate was started in 1879. The Batwara Deputy Collectors submitted report negativing the chak rights The Batwara case, however, was struck off in August 1887, under Section 116 of Act VIII of 1876. After that, partition was again started in September 1889 upon the application of Uma Sundari, one of the proprietors. There was another report by the Deputy Collector negativing the claim of the Chakladars which was approved by the Collector, but the Commissioner left the matter of chak rights open and undecided. He directed that the claim might be recorded and the partition effected, treating the lands as ordinary raiyati lands. Partition was proceeded with and brought to a close by delivery of possession in February 1903. The present suits Were instituted on the roth February 1914.
12. It appears that prior to this the lands of Estate No. 116 were divided from the lands of 115 and the Kalairpar lands were divided half and half between the two estates. One of the proprietors brought a suit for partition of the lands of Estate No. 1116 making all the co-sharers of Estates Nos. 115 and 116 parties. The Chakladar defendants claimed a chak right which was upheld by the Court. The chak right, therefore, was established in the presence of all the parties. The suit, as stated above, related only to the lands of 116, but the chak right claimed was under the same grants for lands common to both the estates.
13. The learned District Judge in the present suits came to the conclusion that, in the absence of the sanads, the chak right set up by the defendants was not proved, but he found that, having regard to the long possession on assertion of chak or tenancy right, there was a presumption lost grant, or that the defendants acquired a chak or tenancy right by adverse possession. The main contention of the appellants is that there could be no adverse Possession as the Chakladars were co-sharers, and that time commenced to run only from February 1903 when possession was delivered by the Collector after termination of the partition proceedings.
14. The first question for consideration is, When did the possession of Bhrigu Ram Chakladar commence, whether before or after he became a co owner of the estate? The Court below on that point observes: 'It is clear that Bhrigu was in possession from before 1243 at least and that he could have no possession as proprietor before 1243. The Receiver came in 1244 and Went away in 1273. So Bhrigu could exercise no acts of possession as a proprietor between 1244 and 1273. He could not go into the village then and make khamar of partially the whole Village when the Receiver was in possession of the estate, It is thus very clear that Bhrigu was in possession from before the attachment and that he was in such possession not as a proprietor.' According to the learned District Judge the possession of Bhrigu commenced before the second attachment in 1837 It is contended on behalf of the appellants that this finding is not supported by any evidence. There are, however, materials on the record upon Which the Court could come to that finding, and even if there was any misconstruction of the evidence We cannot go behind the finding.
15. It is also found that Bhrigu held the lands in the assertion of a chak right. That was adverse to the proprietors. In the chitta prepared by the Receiver in 1840, the land in Bhrigu's possession was recorded as khamar, but in 1842 the Receiver realised rent from him by distress under Regulation VII of 1799, which was followed by the suit for refund tor a portion of the money realised as stated above. The Receiver did not realise any more rent from him and Bhrigu continued to hold possession on the assertion or a chak right, and, having regard to the fact found by the Court below, viz., that Bhrigu could exercise no possession as a proprietor between 1837 and 1866, it must be held that he was in possession throughout in the assertion of a tenancy right. Such possession was hostile to the proprietors inasmuch as they could not get khas possession of the lands to which they were otherwise entitled. It is contended, however, first, that the assertion of a hostile title was only with regard to 30 puras of land; secondly, that as soon as Bhrigu became a co-owner his possession ceased to be adverse, as such possession was referable to his possession as co-owner, and, thirdly, that so long as the Receiver was in possession, the other co-owners could not take any steps for obtaining khas possession.
16. With regard to the first contention, it has already been pointed out that the chitta, Exhibit 29, which recorded 30 puras in the possession of Bhrigu was only a portion of the chitta, and related to one saham only (that of Baseed). Then, it is not disputed that in the suit brought by Sibnath (one of the co-owners) for possession of his share of the lands in 1849, Bhrigu in his written statement filed on the 31st July 1850, set up his chak right to the whole of the lands now in suit and his possession of the same from before his acquisition of any interest in the xemindari.
17. With regard to the second ground, it is no doubt true that the possession of a co-owner is not ordinarily adverse to the other co-owners, and Bhrigu's possession after he became a co-owner would not have been adverse, were it not for the fact that he continued to hold the land after he became a co-owner in the assertion of the same hostile, title as he had set up before he became a co-owner.
18. Reference was made to Hardit Singh v. Gurmnkh Singh 47 Ind. Cas. 626 : 28 C.L.J. 437 : 58 P.W.R. 1918 : 64 P.R. 1918 : 24 M.L.T. 389 : 20 Bom. L.R. 1064 : (1919) M.W.N. 1 : 9 L.W. 123 : 1 U.P.L.R. (P.C.) 8, where the Judicial Committee held that uninterrupted sole possession by a member of a joint Hindu family property, without more, must be referred to the lawful title possessed by the joint holder to the use of the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. That principle cannot be, and is not, disputed by the respondents. But their Lordships were dealing with a case where there was merely sole possession by one member 'without more', and which could not be regarded as an assertion of an adverse claim against the others. Their Lordships did not lay down that a co-owner cannot assert a hostile title against the other co-owners. Nor does the case of Balaram Guria v. Syama Charan Mondal 60 Ind. Cas. 298 : 33 C.L.J. 344 : 24 C.W.N lay down any such proposition.
19. The possession of a person who enters into possession originally as a co-owner can be adverse if there be an ouster of the other co-owners. If so, the possession of a person who originally entered not as a co-owner, but subsequently became a proprietor and continued to assert hostile title and exercise possession to the exclusion of the other co-owners cannot be said to have ceased to be adverse. The other proprietors were entitled to khas possession of the hands, but they were kept out of khas possession by the Chakladars. Of course, the mere fact that the Chakladar was in sole possession of the lands by itself would not constitute his possession adverse. But, as stated above, he was in khas possession on the assertion of a chak right both before and after he became a co-owner to the exclusion of the other proprietors. The Receivers as well as all the co-owners were parties to the suit for possession brought by Sibnath in 1849 and in which the Chakladar distinctly asserted his chak right to the whole of the land in dispute in the present suit. The assertion of a hostile title was, therefore, made in the presence of all the co-owners and the Receiver. Uma Sundari, the predecessor-entitle of the Bal plaintiffs, was a defendant in that suit, but she did not appear. Another proprietor Mr. Wise in his written statement said that the Chakladar had been in possession under an Act IV decree and that he was contemplating a suit against him. Sibnath's suit was ultimately dismissed for want of prosecution in 1854 The suit brought by the successor-in-interest of Mr. Wise long after, was dismissed on the ground of limitation. So that not only was the Chakladar in exclusive possession of the lands upon an assertion of a hostile title both before and after he became a proprietor, but suits were actually brought by some of the co-owner sand, notwithstanding the suits the Chakladar retained possession to the exclusion of all the co-owners. This amounted to ouster so far as khas possession was concerned.
20. The third contention is, that the proprietor could not sue for possession so long as the estate was in the hands of the Receiver (1837 to 1866), and time cannot ran against a person so long as he cannot sue. It is not clear that the appointment of a Receiver (Manager) under Regulation V of 1812 to manage the estate, 'that is, to collect the rents and discharge the public revenue and provide for the cultivation and Entire improvement of the estate' (see Section 20), took away the right of the proprietors to sue for declaration of their title and for recovery of possession which, when recovered, would vest in the Receiver. In any case, they could move the Court to compel the Receiver to sue. However that may be, either the Receiver, or the proprietors, or both jointly, could take steps to recover khas possession from the Chakladar The proprietor's right to sue for khas possession against Bhrigu Ram accrued even before the second attachment in 1837. The mere appointment of a Receiver therefore could not prevent the Statute of Limitation running which had commenced from before the attachment. As stated above, it is found by the Court below that the Chakladar came into possession before the appointment of the Receiver. The Receiver was kept out of (khas) possession by the Chakladar. It is true that Bhrigu Ram by purchasing a share in the estate became bound by the proceedings in which the Receiver was appointed a nd was not a stranger to the proceeding, but, as a matter of fact, he did keep the Receiver out of khas possession to which the latter was entitled, and, as a matter of fact, one of the proprietors Sibnath did bring a suit for possession of his shares in 1849, which was dismissed for want of prosecution. The suit brought by the successors in- interest of Mr. Wise, another proprietor, was also dismissed. It cannot be said, therefore, that the proprietors were unable to take any steps. It is contended that a suit could not be maintained for merely negativing an assertion, and reference is made to Rajah Nilmoney Singh v. Kally Churn Singh Bhattacharjee 2 I.A. 83 : 14 B.L.R. 382 : 23 W.R. 150 : 3 Sar. P.C.J. 447 : 3 Suth. P.C.J. 77 (P.C.) but there the person who sought the declaration was in receipt of the rents and profits. Here the proprietors could not rely upon the possession of the Receiver because the Receiver was not in possession.
21. But assuming that the possession of the Chakladar was not adverse so long as the estate was in the bands of the Receiver, there can be no doubt that the proprietors could sue in 1867 when the Receiver was discharged. It is true that a few days before the expiry of 12 years from 1867, i.e., in 1878, suits for partition were instituted but those suits had no reference to the chak right claimed by the Chakladar. They had reference only to the proprietary interest. The partition proceedings ended in 1903 but the question relating to the subordinate interest having been left open and undecided, did not and could not affect such interest, and the partition proceedings consequently did not prevent imitate on running so far as such interest was concerned. The exclusion of the period during which the partition proceeds were pending would not avail the plaintiff, because the present suits were instituted about 11 years after the termination of the partition proceedings in 1903.
22. The plaintiffs ought to have got the question whether the Chakladars had any subordinate interest settled, and the mere fact that suits for partition relating to the proprietary interest did not come to an end until 1903, therefore, could not affect the question of adverse possession of the Chakladars with respect to the subordinate interest. The Chakladars were in possession with an assertion of title to the entire land in suit within defined boundaries, to the exclusion of the other proprietors, such possession must, therefore, be held to extend to waste or beel lands also, but the Commissioner's map does not show any bed or jheel lands within the disputed lands. The possession of the Chakladars for a period exceeding 80 years held on an assertion of a hostile title to the exclusion of the other proprietors both before and after Brigu entered upon the lands and maintained notwithstanding suits for possession brought against them by other proprietors, constitutes adverse possession. We are accordingly of opinion that the learned District Judge was right in holding that the claim for khas possession was barred by limitation.
23. In this view, it is unnecessary to consider the case of Kiran Babu and Ghose defendants. Their possession dates from 1881 and they were not proprietors of Kalaipar. It is proved teat they have been in exclusive and adverse possession of the land purchased by them ever since 1881, and the claim for khas possession as against them is barred by limitation, even if the suit beheld to be in time against the Chakladar defendants. We think the principle of lis pendens does not apply because the proceedings in the Civil Court ended in 1889 and the proceedings before the Collector taken from time to time (and not continuous) cannot be held to be in continuation of the partition suit in the Civil Court.
24. It was finally contended that the decree in a partition suit has the effect of a conveyance by the co-sharers in favour of one another in respect of the lands allotted to each. But, in the first place, as already stated, the partition was only in respect of the proprietary interest, and, in tee next place the subordinate right set up by the Chakladars in the partition proceedings was expressly left open and undecided. Although, therefore, the parti ton was directed to take place on the footing that the lands were raiyati. t must be taken that the parts ton was subject to any adjudication of the tenancy right which was left open and undecided in the partition proceedings. We are accordingly of opinion that the principle contended for. can not apply in the present case. On the whole we agree with the Court below and the appeals must be dismissed with costs. (Costs in each case will be divided thus: 2-3rds to the Chakadar defendant and 1-6th each to Kiran Babu and Ghose defendants.
25. The cross-objections were not pressed and are also dismissed. In respect of cross-objections in S.A. Nos. 1959, 1960 1981, 1984, 1985 and 2146 of 1918 the respondent No. 1 Bipin Bihary Chakladar will pay costs to the appellants.