1. This appeal arises out of a suit for ejectment of the defendant from a piece of land (10 cubits by 22 cubits) situated in the town of Chittagong.
2. The Court of first instance gave a decree to the plaintiff for the western portion of the land and dismissed his claim with regard to the eastern portion. The decree has been affirmed on appeal.
3. The defendant has preferred this appeal and the plaintiff has filed a cross-objection.
4. It appears that a previous suit was instituted by the plaintiff against the defendant for ejectment. It is not clear from the judgment of the lower Court whether the whole of the land now in dispute was in dispute in the previous suit. But it is not very material to go into the question, because the previous suit was brought by the plaintiff for ejectment on the ground that the defendant was a trespasser and that he had no right whatever to the land. In the present suit also, in the first portion of prayer (Ka), the plaintiff claims possession on the very same ground, but in the latter portion he says that he is entitled to possession on the ground that the tenancy of the defendant had been determined by service of notice to quit if the defendant set up any tenancy.
5. The previous suit was withdrawn by the plaintiff without liberty to bring a fresh suit in respect of the same subject matter. In that suit the defendants raised the defense that they had a tenancy right in the land and could not be ejected. The question was decided in favour of the defendants, but the decision cannot prevent the plaintiff from bringing this suit, because the plaintiff proceed to determine the tenancy which was set up by the defendant in that suit by service of notice to quit and then brought this suit for recovery of possession on that footing. It was not necessary for the Court to decide in the previous suit the exact nature of the defendant's tenancy; in other words, whether the tenants were permanent or not. In this view of the matter, we are unable to hold that the plaintiff is precluded from bringing the suit under Order XXIII, Rule 1.
6. The Courts below have found that the defendant has got a kaimi right to a portion of the land in respect of which the plaintiff's claim has been dismissed. With regard to the western portion in respect of which the claim, as stated above, has been decreed, the defendant set up the same title as he did with regard to the eastern portion and it was his case that he and his predecessor in title were in possession thereof for over 12 years. The Court of first instance found that the defendant purchased in 1903 and that he encroached after his purchase. Apparently, the learned Subordinate Judge was of opinion that the plaintiff was in possession within 12 years of the suit because in his opinion the defendant's encroachment was within that period.
7. On appeal, it was contended before the learned District Judge on behalf of the defendant that the defendant and his predecessors were in possession for over 12 years. The learned Judge was of opinion that even if the defendant and his predecessors were in possession for more than 12 years, they were so as trespassers by virtue of surreptitious encroachment and that, therefore, limitation would not apply.
8. We think that the question of surreptitious encroachment does not affect the matter. If the defendant and his predecessors in title encroached upon the land adjoining the lands of their tenancy and held the same for 12 years, they acquired a limited interest in the property by prescription as they did not set up any title adverse to the maliki right of the plaintiff. The learned Judge has not some to any finding upon the question whether the defendant and his predecessors-in-title were in possession for 12 years. If they were in such possession, the plaintiff's title to khas possession would be barred.
9. It has been pointed out that the Dokan Ghar which is on the disputed land has been on the land since the year 1898 when the cadastral survey took place though it is not mentioned in the Record of Rights. This will be taken into consideration by the lower Appellate Court along with other evidence in the case.
10. The plaintiff's cross-objection relates to the eastern portion of the land in respect of which his claim has been dismissed by the Courts below.
11. It is contended before us that the Courts below are wrong in holding that that portion of the claim is barred by the doctrine of res judicata.
12. The previous suit, as stated above, was withdrawn without liberty to bring a fresh suit. The question of res judicata, therefore, does not arise: and, had the decision of the Court below rested merely on the ground of re judicata, that judgment would have had to be set aside. It appears, however, that both the Courts below have considered the evidence as to the nature of the defendant's right to the eastern portion of the land and they have come to the conclusion that the defendant had a kaimi right. We do not see any reason for disturbing (hat finding of the Courts below.
13. The cross objection must, therefore, be disallowed.
14. The result is, that the decree of the lower Appellate Court, in so far as it relates to the eastern portion of the land, will stand and the case will be remanded to that Court; in order that the Court may come to a finding upon the question of limitation so far as the claim for khas possession is concerned and then dispose of the claim with regard to the western portion in accordance with the result of that finding.
15. Costs will abide the result.