1. The suit relates to a chur known as chur Bansa which appears originally to have been an accretion to the village Bansa, situated in estate No. 6 called Dihi Fatehpur. Government surveyed the chur, found that a certain portion fell within estate No. 6 and released it to the proprietors of that estate. The remainder was formed into a separate estate numbered 407, and settled with the then proprietors of the estate No. 6.
2. Subsequently various separate accounts were opened in No. 407 and ultimately the residuary or ejmali share of 6 annas odd fell into arrears and was sold under Act XI of 1859. It was purchased by the plaintiff. The plaintiff also obtained a putni of another share of 3 annas odd from the defendants Nos. 8 to 10, who are said to be the maliks of that share. The plaintiff has brought this suit for possession, praying that estate No. 407 may be ascertained, and that when it has been ascertained he may obtain his share in it by partition. Both the courts below have held that the suit is barred by limitation and the plaintiff appeals.
3. Dealing first with the question of the share of 3 annas it is not seriously disputed by the learned pleader for the respondents that the suit is within time. The respondents are some of the proprietors of No. 6 and purchasers from them. Their case, as it has been laid before us, is that they have obtained a title to the lands in suit by adverse possession, inasmuch as they have occupied these lands for more than 12 years, though they are proprietors, not of No. 407, but of No. 6. The learned District Judge has not properly distinguished between the plaintiff's right to the three annas share and his right to the six annas share. He says 'It appears that prior to 1305 the entire lands of these two estates remained intact for 30 or 35 years, and that the purchasers of Mauza Bansa remained in possession of the lands of Mauza Bansa as well as of chur Bansa for upwards of 15 years.' But in so far as this finding affects the 3 annas share it appears to us that the learned District Judge has gone beyond the pleadings. Paragraph 12 of the written statement shows that the defendants did not plead that the title of the plaintiff's lessors was extinguished by lapse of time at the time when the putni was granted. This being so no question of limitation arises with respect to the 3 annas share and the decisions of the lower Courts must be set aside with respect to it.
4. As to the six annas share the view of the Courts below is that the adverse possession of the defendants had extended over a period of more than twelve years before the purchase by the plaintiff at the revenue sale, and that therefore the defendants had acquired a title which could not be impugned by the plaintiff, whose rights were those conferred by Section 54 and not those conferred by Section 37 of Act XI of 1859.
5. It appears to us that the case must; be governed by the principles laid down in Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528, with which we are in entire accord. It was laid down in that case that the purchaser of a share at a revenue sale is entitled to that share, even if a person other than the recorded proprietor has acquired a title by 12 years' adverse possession previously to the sale. If this view is correct the adverse possession of the defendants before the revenue sale cannot affect the plaintiff's purchase of the share and no question of limitation can arise, the suit having been instituted by the plaintiff little more than two years after his purchase.
6. For the respondents reliance has been placed on the decision in Karmi Khan v. Brojo Nath Das 22 C. 244, and it has been argued that the adverse possession for 12 years by the defendants constituted an encumbrance which the purchaser at the revenue sale could not avoid. That case however is distinguishable from Kumar Kalanand v. Syed Sarafat Hossein 12 C.W.N. 528 as also from the present case, inasmuch as the defendant in it was a mere lakherajdar under the proprietor and did not acquire by his adverse possession any thing more than a right to hold land under the proprietor free of rent. He did not acquire any proprietary right nor could he have become liable for the payment of arrears of revenue. If, as the defendants allege, they had acquired a complete proprietary title to the share sold by adverse possession prior to the sale, it is certainly difficult to see how their adverse possession could constitute an encumbrance on the share. The title or possession of a proprietor can hardly be an encumbrance on his property. It might both be an encumbrance on the right of the recorded proprietor, but in a sale under Section 13 of Act XI of 1859 it is not the rights of the recorded proprietor that pass, but the share itself, Bhawani Koer v. Mathura Prasad 7 C.L.J. 1.
7. Following the decision in Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528, we hold that the suit is not barred by limitation. The appeal must accordingly be decreed and the suit remanded for disposal of the remaining issues. Costs will abide the result.