1. This appeal arises out of a suit wherein the plaintiffs prayed for recovery of khas possession of certain lands upon declaration of their title thereto.
2. The plaintiff's case as laid in the plaint was that the lands were situate in Mouza Benodepore which appertains to plaintiff's estate bearing Touzi No. 831 of the Faridpore Collectorate and were comprised in the residue of the thak of that Mouza, that the lands were formerly in the occupation of the plaintiffs-tenants and subsequently in their khas possession and that the defendants Nos. 1 and 2 who were the proprietors of the adjoining estate bearing Touzi No. 832 in collusion with the other defendants got the lands recorded in the District Settlement within their estate, and afterwards dispossessed the plaintiffs.
3. The defence in substance was that the lands appertained to Taluk No. 832 belonging to the defendants Nos. 1 and 2, that the plaintiffs had no title thereto or possession therein, that the suit was barred by limitation and that the defendants had all along been in possession of the said lands for some time through tenants and for some time in khas, and that the same had been correctly recorded in the District Settlement as being within the defendants' estate.
4. A Commissioner was deputed to hold a local investigation and demarcate the boundary line between the land of the chaks of the two Touzis aforesaid, and it was found that out of the plaint lands the whole of cadastral survey plots Nos. 1104, 1106 and 1134, and portions of cadastral survey plots Nos. 1145, 1105 1107, 1155, 1165, and 1166, which are outside the green circuit in the case map (which indicates chak No. 26 of Touzi No. 832) appertained to the residue of the-thak which is comprised in plaintiffs' estate Touzi No. 831. This is not now disputed.
5. The trial Court made a decree for ejectment in favour of the plaintiffs for such of the said plots or portions of them as-fell outside the said green line, with the exception of cadastral survey plots Nos. 1106 and 1334 and portion of cadastral survey plot No. 1104 which that Court found to be in the possession of certain tenants bona fide inducted by the defendants Nos. 1 and 2. For the portions so excepted the Court passed a decree that the plaintiffs would get rent at. the prevailing rata from the defendants Nos. 4 to 8.
6. Against the said decision appeals were preferred by both the parties and the Court of appeal below while affirming the finding of the Court of first instance on the question of plaintiffs' title dismissed the suit in its entirety holding that the defendants bad acquired a title by adverse possession. The plaintiffs have there-upon appealed to this Court, and two. contentions have been put forward by Mr. Mitter who has appeared for them. Firstly, it has been urged that the defendants Nos. 1 and 2 being wrong-doers, cannot be held 60 have acquired a title by adverse possession unless that possession was exclusive and continuous, and if there were intervals during which they were not in actual possession, it is the plaintiffs and not they who are wrong-doers, that should be held constructively to have been in possession during those intervals. Nextly, it has been urged, that there is no finding in the judgment of the lower Appellate Court nor has any investigation been held by that Court on the question as to what was the condition of the lands about 12 years before the institution of the suit, such as would be necessary to determine the character and extent of possession which would be sufficient to confer a title on the defendants Nos. 1 and 2.
7. With regard to the first of the aforesaid contentions, Mr, Mitter has relied, amongst others, on the cases of Trustees' Agency Go. v. Short (1888) 13 App. Cas. 793, Secretary of State for India v. Krishna Mani Gupta (1902) 29 Cal. 518, Basanta Kumar Roy v. Secretary of State for India A.I.R. 1917 P.C. 18 and Clark v. Elphinston (1881) 6 App. Cas. 164.
8. Now the law on this point is wall settled. Lord Macnaghten in the case of Trustees' Agency Co. v. Short (1888) 13 App. Cas. 793, quoted with approval the statement of Baron Parke in Smith v. Lloyds (1854) 9 Exch. 562, concurring in the judgment of Blackburn, C.J., in McDonnell v. Mc Kinty 10 Ir. L.R. 504 and the principle on which it was founded that 'in order to bring a case within the statute of Limitation there must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute ' and observed that ' if a person enters upon the land of another and holds possession for a time and then without having acquired a title under the statute abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place.' In Secretary of State for India v. Krishna Mani Gupta (1902) 29 Cal. 518, the Judicial Committee of the Privy Council observed that 'in order to sustain a claim to land by limitation under the Indian Act, there must in their opinion be actual possession of a person claiming as of right by himself or by persons deriving title from him,' and their Lordships held that 'the possession of the Government was in fact determined by the submergence of the land which became derelict and so long as it remained in that state no title could be acquired against the true owner.' In Basanta Kumar Roy v. Secretary of State for India A.I.R. 1917 P.C. 18 the Judicial Committee observed that there could be no continuance of adverse possession when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation: and that the real owner does not discontinue his possession so long as the land is diluviated. There can be no question that adverse possession to be effective must be possession adequate in continuity, in publicity and in extent of area, and must be actual, visible, exclusive and hostile; also, that the doctrine of constructive possession cannot be applied in favour of a wrong-doer, whole possession is confined to the area of which he is in actual occupation: Radha Moni Debi v. The Collector of Khulna (1900) 27 Cal. 943, Nawab Bahadur of Murshidabad v. Gopi Nath Mondal (1910) 13 C.L.J. 625, Wali Ahmed Chowdhury v. Tota Meah Chowdhury (1904) 31 Cal. 397, Jagendra Nath Roy v. Baladeo Das (1908) 35 Cal. 961. A series of isolated acts of trespass with no continuity of possession would fall short of the requisite; and if, in fact, there has been interruption, possession during such interruption must be deemed to be with the person having the lawful right. It must also be actual as opposed to ideal possession: Clark v. Elphinston (1881) 6 App. Cas. 164.
9. In order to apply these principles to the facts of the case before us we have examined the findings of the Courts below with some degree of care. Mr. Hitter has contended that the findings of the Court of appeal below in so far as they seemed to indicate that there were breaks in the possession of the defendants would prevent the operation of the statute in their favour. He has contended that when the lower Appellate Court observed in its judgment that 'it cannot be said that the defendants Nos. 1 and 2 relinquished possession of the land ' as soon as a particular tenant surrendered the land, or observed that ' the intention of the defendants Nos. 1 and 2 was to be looked to ' the said Court took an incorrect view of the law, inasmuch as the defendants Nos. 1 and 2 as trespassers can scarcely foe expected to make a formal relinquishment of or to entertain the intention of abandoning the lands. He had argued that the intention of the defendants was a matter of no consequence and relied in support of his contention upon a passage in Lightwood on Possession of Land, p. 61, where commenting on the case of Trustees' Agency Co. v. Short (1888) 13 App. Cas. 793 the author says:' In other words, the civil possession is not only out of the trespasser but is vested again in the owner. This result seams to depend on the failure of the physical element in possession, and it is not necessary to refer especially to the intention. The possessor has in fact, discontinued his occupation whether he intends to return or not.'
10. Dr. Basak appearing for the respondents has argued, on the other hand that upon the findings of the lower Appellate Court there is no room for the application of the principles enumerated above; for those findings do not indicate such interruption of possession as would vest the real owner with possession in the interim.
11. As already mentioned, we have care-fully examined the findings. We have come to the conclusion that the findings of the trial Court on the question of the intermittent character of the possession of the defendants Nos. 1 and 2 have to a very large extant been displaced or modified by the lower Appellate Court, and in fact it has been found by that Court that during the intervals that there were no tenants on the lands, the defendants Nos. 1 and 2 were in khas possession thereof. It was contended that this finding as to khas possession is not based on evidence and consequently not a finding of fact but the mere statement of a legal position which, in the opinion of the Court, was acquired by the defendants Nos. 1 and 2 by reason of their tenants having left the lands. We are satisfied that this finding is based on evidence and must be treated as a finding on a question of fact. In any event, the intervals, if any, during which the lands were without tenants were of comparatively short durations and the other circumstances of the case are wholly inconsistent with an inference that the possession of the said defendants had, as matter of fact come to an end. It is true that once, in fact there has been cessation of possession the question of intention is wholly immaterial; but in determining whether there has been discontinuance of possession, intention cannot altogether be left out of account. For after all, the adverse character of possession must be based to a certain extent on the intention to exclude the real owner. The first of the two contentions must therefore fail.
12. As to the second contention referred to above, reliance has been placed upon the decision in Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal (1908) 12 C.W.N. 273 and the oases upon which it is based. In our opinion having regard to the character of the lands in suit which, according to the pleadings of the parties and the evidence in the case, were lands mainly in the occupation of tenants during the greater part of the period, no further investigation into the matter was necessary. This contention therefore must also fail.
13. In this view of the matter, we think the judgment of the lower Appellate Court was right, and we accordingly dismiss the appeal with costs.