1. The disputed land originally formed part of the occupancy holding of Fatiram Tilakdas. After his death his widow, pratima, mortgaged the holding to the plaintiff. Under the terms of the mortgage instrument the plaintiff was to have possession as usufructuary mortgagee, or ijaradar for a period of nine years ending with Baisakh 1319 B.S. Tilakdas left four daughters, but it appears that since the death of his widow, two of the daughters paro and, Bhuban have been treated as his heirs and the case has been argued before us on both sides on the assumption that they were his sole heirs.
2. On the expiry of the term of his mortgage the plaintiff did not surrender possession of the holding or the agricultural land therein comprised. In 1912, therefore, Paro and Bhuban sued him in ejectment claiming title as their father's heirs. In that suit Paro succeeded in appeal to the extent of a moiety of the holding while Bhuban's claim to the other moiety was dismissed. It is not very easy to follow the reasoning of the Appellate Court. The plaintiff's case (he was then defendant) was that on the death of Pratima, the landlord took khas possession of the holding and settled it with him with the knowledge and consent of the two ladies. The Trial Court had accepted that plea and had dismissed the suit in its entirety. In the appeal the learned Subordinate Judge found in his own words that 'the evidence is not satisfactory to show that the malik dispossessed the plaintiffs (i.e., the two ladies) and took the lands into his khas possession.' Nevertheless, he seems to have dismissed Bhuban's claim on the ground that she and the plaintiff (then defendant) had come to some am cable settlement with the landlord which did not bind Paro. It is not easy to conceive of an amicable arrangement between the plaintiff and Bhuban which would deprive the latter of the whole of her share. Moreover, the claim of a person who has obtained possession of land as mortgagee to retair possession after the termination of the mortgage should always be jealously scrutinized. Nevertheless, it must be accepted that the previous suit makes the quest on of the title to Bhuban's origin, al moety res judicata in the plaintiff's favour as between him and Bhuban.
3. In the present suit, the plaintiff seeks to recover possession of that moiety. The defendants are No. 1 Paro, No. 2 Paro's son, No. 3 Bhuban's husband and No. 4 Bhuban's son-in-law. Dc fend ant No. 4 is a mortgagee from Pare of her moiety and apparently he makes no claim to the disputed moiety. Defendants Nos. 1, 2 and 3 have no title of then own to the latter and must be treated in respect thereof as mere trespassers.
4. In the state of things so disclosed, the learned Munsif in the Trial Court found in the plaintiff's favour and decreed his suit. In the lower Appellate Court the learned Subordinate Judge took a different view and made a decree of dismissal from which the plaintiff has appealed.
5. It is contended on the plaintiff's behalf that the learned Subordinate Judge has erred in law in so for as he holds that the findings of the Appellate Court in the previous suit are not admissible in evidence against the defendants or the contesting defendants 'who were not parties to that suit and who do not claim to be in possession of the disputed eight-annas share of the land either through Paro or through Bhuban.'
6. On that footing the view of the case taken by the learned Subordinate Judge is briefly this, that on the merits (apart from the previous litigation) the plaintiff has not succeeded in establishing his title to the moiety and that, inasmuch as he was dispossessed in 1323 (1916) and this suit was instituted more than six months later in August 1918, he cannot succeed on the mere ground of prior possession.
6. If his premises were granted, the conclusion of the learned Subordinate Judge could not in such a case as the present be disputed in this High Court. There is really no controversy as to the principle that prior peaceable possession furnishes a good title as against a mere trespasser. The result arrived at by this High Court in Nisa Chand Gaita v. Kanchiram 36 C. 579 : 3 C.W.N. 568 : 13 Ind. Dec. (N.S.) 972 is based on the construction and effect of Section 9 of the Specific Relief Act. Other High Courts may have taken a different view of the legal operation of that section but, at any rate, there is this to be said that if a true title may be defeated by twelve years' adverse possession by a trespasser, there is nothing shocking to the sense of justice in a legislative rule that the period of limitation for a suit by mere trespasser or squatter to recover possession should be six months from the date of his dispossession. If that be the true effect of Section 9 of the Specific Relief Act, the learned Subordinate Judge is so far right, nor to the observations of Sir Lawrence Jenkins, C.J., in Shama Charan Roy v. Surja Kanta Acharya 6 Ind. Cas. 806 : 15 C.W.N. 163 and Adhar Chandra Pal v. Dibakar Bhuyan 25 Ind. Cas. 76 : 41 C. 394 amount to a dissent from the rule 'laid down in Nisa Chand's case 36 C. 579 : 3 C.W.N. 568 : 13 Ind. Dec. (N.S.) 972. The ratio decidendi in both those cases was that the rule had no application to the facts. It was held in both cases that the plaintiff had not only been in possession but had a title to possession.
7. So, in the present case, though I should have no compunction in following the Subordinate Judge if I could see my way to so doing, in my opinion, he had applied the rule in Nisa Chad's case 36 C. 579 : 3 C.W.N. 568 : 13 Ind. Dec. (N.S.) 972 in circumstances to which it has no proper application.
8. Here it is common ground that the true title was originally in Bhuban. The contesting defendants though they do not in terms claim a title through or under Bhuban are in effect setting up Bhuban's title as a jus tertii. That being so , they must take Bhubanstitle as it stands. The plaintiff claims a title from Bhuban which in view of the previous litigation Bhuban could not be heard to contest and that title, therefore, is in the circumstances a good title as against the contesting defendants.
In my opinion the appeal should be allowed. The judgment and decree of the Subordinate Judge should be set aside and the judgment and decree of the Munsif should be restored. The plaintiff is entitled to recover his costs of this appeal and his costs in the lower Appellate Court from the defendants Nos. 1, 2 and 3 as the contesting defendant.
I concur in the order my learned brother proposes to pass in the case. I only wish to add that if the question whether a plaintiff can succeed in a suit for recovery of property as against a person having no title to it, only on the strength of his plaintiff's previous possession had not been settled in this Courtby a series of decision followed in a large number of cases, I would have deemed the proposition worth re consideration in view of the reasonings of other High Courts which have taken a different view and some pronouncements of the Judicial Committee.