B.B. Ghose, J.
1. This is an appeal by the claimant No. 6 against the judgment and decree of the District Judge acting as the Special Land Acquisition Judge on a reference made by the Collector under the Land Acquisition Act as to the apportionment of the compensation paid with regard to the acquisition of certain lands in the suburbs of Calcutta. The claimant No. 6 who was described as the plaintiff in the Court below prayed for the compensation with regard to a certain area of the lands acquired which has now been found to be about 10 cottas as against the claimants Nos. 1 to 5, who had been described as the defendants in the Court below. The real contesting parties were claimants Nos. 1 and 2. Claimant No, 1 claimed to be the owner of the lands in lakheraj right and claimant No. 2, who is the wife of claimant No. 1, claimed the property in her right as mourashi mokurrari holder under her husband, the claimant No. 1. The Collector awarded the entire amount of compensation to the claimants Nos. 1 and 2. The other claimants had no subsisting interest in the property and their position may be altogether neglected. The real contest was between claimant No. 6 as the plaintiff and the claimants Nos. 1 and 2 as the defendants. The learned Judge held that the plaintiff was not entitled to any portion of the compensation and has dismissed his claim. From that judgm en the plaintiff appeals to this Court.
2. The learned Judge found that the property was not lakheraj property of the claimant No. 1, but that it was situated within touzi No. 33 belonging to the appellant. The predecessor-in-interest of claimant No. 1 Kinuram Halder, was a tenant on the land under the predecessor-in-interest of the appellant who appears to have been a recent purchaser, at a rent of Re. 1-1 anna 3 pies. The land was originally a tank with its banks which has been filled up by claimant No. 1 five or six years before the acquisition. Although the learned Judge found that the land was within the semindari to the appellant and the claimant No. 1 was a tenant with regard to the land, he dismissed the appellant's claim on two grounds. He held first that the title of the plaintiff-appellant was lost by the rule of limitation, as the claimant No. 1 was in adverse possession of the property for a period exceeding 12 years. He next found that even if the title of the plaintiff-appellant was not barred by limitation, the father of claimant No. 1, Kinuram Haider, was in possession under a permanent tenancy right, and so the plaintiff would only be entitled to a very small sum of money, and that even if he be allowed 20 or 30 times the rent payable, that would be a very Insignificant sum; and upon that view also he held that the plaintiff was not entitled to any part of the compensation. He, therefore, made an order that the award of the Collector giving the entire sum to the claimant No. 2 except a very small amount given to the claimant No. 1 should be supported.
3. On behalf of the appellant it was argued that the learned Judge was wrong both in his view that the plaintiff's title was barred by limitation and also with regard to his view that Kinuram and after him Gurupada, the claimant No. 1, had a permanent tenancy right with regard to the land in dispute. The contention on behalf of the plaintiff-appellant was that he was entitled to the whole, of the compensation with regard to the ten cottas of land. On behalf of the respondents, the first point urged was that the learned Judge was wrong in holding that the disputed land fell within touzi No. 33, which is the property of the Maharaja, the plaintiff-appellant, and that the Commissioner's report to that effect ought not to have been accepted by the learned Judge. On that ground the respondents wanted to support the decision of the learned Judge in the first instance. There is, however, considerable difficulty in the way of the respondents to support that contention. The first difficulty is that they have not printed the report of the Commissioner, nor the map prepared by him, nor the chitta which was prepared after the khasra measurement made with regard to the property in question and the surrounding places. In the absence of all these papers the learned Advocate appearing for the respondents tried to support his contention by reading passages from the evidence of the Commissioner and commenting upon them to the effect that the Commissioner's relaying the khasra map with reference to the chitta was unsatisfactory. I do not think that that is the proper way of attacking the measurement made by the Commissioner and also of attacking his report without any reference to the report itself. To my mind it seems that the passages in the evidence of the Commissioner to which reference was made by the learned Advocate were given in answer to questions put by the cross-examining Counsel to the Commissioner with reference to his report, and one can hardly understand those statements without any reference to the report itself. Reading the evidence of the Commissioner as a whole, it seems to me that he made every endeavour to find the true state of things with reference to the map of 1849 (Ex.7) and to the chitta prepared by the Government officials. The khasra was treated by the Commissioner as the thak survey map. An objection was taken on behalf of the respondents here that that khasra map waff not really the thak map. There were no stations in the map and so forth. But these questions about the absence of proper stations in the map or that this khasra could not have been the thak map do not appear to have been specifically put to the Commissioner when he was examined in Court. Nor is it suggested that there is any other thak map with regard to the, locality in question. It does not appear that any objection was specifically taken in the Court below that the local investigation of the Commissioner was erroneous in substance. On the other hand, as the learned Judge observes, the engineer who was employed by the respondents to make a survey of the locality and of the land in dispute said that his map agreed more or less with the Commissioner's map and Smart's plan. I should observe here that the engineer who was employed by the defendants-respondents had not much experience with regard to thak maps, as he himself states that in the course of his long experience as a civil engineer, he had to deal with thak maps on three or four occasions only. His evidence, therefore, as against the evidence of the Commissioner appointed by the Court is really of no value. But as the result of his survey agreed with that of the Commissioner, it is unnecessary to state anything further in detail with regard to the evidence of that gentleman. In my opinion, therefore, the respondents have not succeeded in displacing the finding of the learned Judge that the 10 cottas of land within the premises No. 23(1), Radha-nagor Road, appertains to the plaintiffs' touzi No. 33 and are covered to dag No. 22 of the chitta. That being so it follows that the father of the defendant, claimant No. 1, Kinuram, was a tenant on the land and that it was not the lekhemj or brahmattar land of Kinuram. This last proposition has not been contested by the respondents here.
4. The next question we have to deal with is with regard to the contention of the appellant that the learned Judge was wrong in holding that the Maharaja, the appellant, had no subsisting title in the acquired land at the date of the acquisition. The proposition as to the loss of plaintiff's title by adverse possession, it need hardly be mentioned, is that the land should be in the first place found to be in the possession of a person adversely to the true owner. If the land is in possession of a tenant of the owner, it is the owner's possession. The tenant so long as he remains a tenant cannot be held to be in possession of the property adversely to the true owner so as to bar his title by the Statute of Limitation. A person who was a tenant can only be said to have held adversely to the owner of the property when his character as tenant ceases and he becomes a trespasser on the land. The character of a tenant as a tenant ceases only when the tenancy is determined and not before. A tenancy cannot be determined by a mere disclaimer by the tenant that he holds the property as his own, even if it be to the knowledge of the landlord, if the landlord does not take any advantage of the disclaimer so as to be entitled to take possession of the land. It seems to me that this is the real principle as regards the rule of adverse possession as between landlord and tenant. I may refer to the law on the subject from a well-known book, Light-wood on Possession of Land at page 164, not as an authority but as a summary of the general principle of law expressed in appropriate language. Where land was in the possession of a tenant, not only was the possession consistent with the title of the landlord but the tenant could not by himself alter its character. The duty which he owed the landlord of preserving his title prevented any acts of his from having the effect of acts of adverse possession [ per Lord Eldon, C., Cholmondeley v. Clinton (1821) 4 Bligh 1 at p. 96 : 4 E.R. 721 : 2 Jac. & Walk. 1 : 22 R.R. 84]. By disclaiming the landlord's title he would forfeit the term [Doe v. Pasquali (1793) Peake 259 : 3 R.R. 688 : 170 E.R. 149, and Doe v. Stanion (1836) 1 M. & W. 693 : 1 Tyr. & G. 1065 : 2 Gale 154 : 5 L.J. Ex. 253 : 150 E.R. 614 : 46 R.R. 464] but the landlord was not bound to take advantage of the forfeiture, and might enter upon the natural expiration of the term [Doe v. Danvers (1806) 7 East 299 at p. 321; 103 E.R. 115 ]. And when the tenant for years became a tenant at sufferance by holding over, it appears that he was still unable to disseize his landlord and gain an adverse possession, or at any rate such disseizin would not be presumed from mere length of possession. This principle may very well be gathered from a series of cases decided by the Privy Council: Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 49 I.A. 399 : 27 C.W.N. 925 : 3 P.L.T. 605 : A.I.R. 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 2 Pat. 38 : 45 M.L.J. 460 (P.C.), Mohammad Mumtaz Ali Khan v. Mohan Singh 74 Ind. Cas. 476 : 50 I.A. 202 : 28 C.W.N. 840 : A.I.R. 1923 P.C. 118 : 21 A.L.J. 757 : 45 A. 419 : 26 O.C. 231 : 45 M.L.T. 623 : 9 O. & A.L.R. 901 : 10 O.L.J. 383 : 19 L.W. 283 : 39 C.L.J. 295 : 33 M.L.T. 321 (P.C.), Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande 74 Ind. Cas. 362 : 50 I.A. 255 : 28 C.W.N. 857 : 25 Bom. L.R. 1005 : (1923) M.W.N. 689 : A.I.R. 1923 P.C. 205 : 33 M.L.T. 389 : 47 B. 798 : 20 L.W. 248 : 47 M.L.J. 248 (P.C.) and Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 51 I.A. 83 : 47 M. 337 : 28 C.W.N. 809 : A.I.R. 1924 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : L.R. 5 A. (P.C.) 33 (P.C). What the learned Judge has found in this case was that in 1903-1904 there was a Government survey of the lands held by Mr. Smart. At that time officers of the Maharaja, the appellant before us, were present. The register that was prepared after Smart's survey recorded the entire land as being the proprietary possession of Gurupada's mother Hemangini, the executrix of the Will of her husband Kinuram. There is no evidence that from that time, if not from before, the Maharaja's people ever asked for, or were paid, any rent. The learned Judge says that there was a clear assertion by the tenant of hostile title to the knowledge of the Maharaja. In that view of the case, the learned Judge held that the Maharaja had no subsisting title when the land was acquired in the year 1920. In my opinion the learned Judge was wrong in his view, as I have, pointed out, that there could not have been any adverse possession by the tenant as against the landlord so as to extinguish the title of the landlord. Reference has been made to a ease decided by the Judicial Committee, on behalf of the respondents. Tekaetnee Goura Coomaree v. Saroo Coomaree 19 W.R. 252 (P.C.). That case, in my opinion, has no application to the present controversy as there it was found that the tenant had the mokarrari right claimed by grant.
5. The learned Advocate for the respondents next relies upon certain observations in the judgment of Mookerjee, J., in the case of Giris Chandra Gangopadhaya v. Sri, Krishna De Nag : AIR1924Cal168 . Apparently the observations made by the learned Judge to some extent support the contention of the learned Advocate. It seems to me, however, that the learned Judge did not mean to lay down that the mere act of the tenant disclaiming the title of the landlord to his knowledge would determine the tenancy and convert the tenant into a trespasser so as to cause the Statute of Limitation to run against the landlord and to extinguish by lapse of the time the title of the landlord. If that was what the learned Judge meant to lay down, I must respectfully differ from that view.
6. It is no doubt true that when the tenancy is determined either by efflux of time or by service of proper notice by either side, by surrender or by forfeiture which has been taken advantage of by the landlord, the relationship between landlord and tenant ceases and the quondam tenant would then be in possession as a trespasser, but the mere act of the tenant repudiating the tenancy, where the lessor or his transferee does not do any act showing his intention to determine the lease does not put an end to the tenancy. It has been held in this Court that a landlord cannot bring a suit to eject a tenant on the ground of forfeiture, without previously expressing his intention to determine the tenancy by some overt act, when the enant incurs a forfeiture, see Naurang Singh v. Janardan Kishore Lal Singh Deo 41 Ind. Cas. 952 : 45 C. 469 : 22 C.W.N. 312 : 27 C.L.J. 277. I need hardly say that mere nonpayment of rent or discontinuance of payment of rent by itself does not create adverse possession. Prosonna Kumar Mukherjee v. Srikant Raut 16 Ind. Cas. 365 : 40 C. 173 : 17 C.W.N. 137 approved in Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 49 I.A. 399 : 27 C.W.N. 925 : 3 P.L.T. 605 : A.I.R. 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 2 Pat. 38 : 45 M.L.J. 460 (P.C.).
7. The next question is whether the tenancy of defendant No. 1 was a permanent tenancy. The defendant No. 1 who is really the tenant never claimed any such interest. His only plea was that he was in possession of the property in absolute right and that he had created a maurashi mokarrari lease in favour of his wife by an instrument, dated the 20th of July, 1921, and that the property did not appertain to touzi No 33--belonging to the Maharaja. The claimant No. 2 who is the sub-lessee of the claimant No. 1, however, said that assuming that the land appertains to touzi No. 33, it was held by Babu Gurupada Haldar, that is claimant No. 1, and his predecessors as tenants under the Maharaja under a permanent tenancy and that she was entitled to the whole of the compensation minus 20 times the annual rent claimed by the Maharaja. Whether that lady was entitled to raise the plea of permanent tenancy of her husband, her lessor, as against the plaintiff is a question which has been contested by the appellant because such a question was never raised by the actual tenant himself. But as this question was raised in the issues we think it may very well be discussed. The only ground on which the learned Judge has held that the tenancy of Gurupada and his father Kinuram was a permanent tenancy, was that the rent was never changed at least from 1847 down to the present time, although it is notorious that value of landed property in Calcutta and its suburbs had risen considerably; and secondly, from the fact that the land was undoubtedly in the occupation of defendant. No. 1 and his father from 1847, he makes an inference that it was in his possession from 1830 as the rent was said to be fixed in sicca, rupees and from that he makes the inference that the tenancy might have been in existence from the Permanent Settlement. There cannot be any question that the onus of proving permanent tenancy right is on the tenant. See Secretary of State for India v. Luchmeswar Singh 16 I.A. 6 : 16 C. 223 : 13 Ind. Jur. 10 : 5 Sar. P.G.J. 275 (P.C.), Seturathan Iyer v. Venkatachala Goundan 56 Ind. Cas. 117 : 471 A. 76 : 43 M. 567 : 25 C.W.N. 485 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 (P.C.) and Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 51 I.A. 83 : 47 M. 337 : 28 C.W.N. 809 : A.I.R. 1924 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : L.R. 5 A. (P.C.) 33 (P.C.). Here the land was only a tank, it was not leased for residential purposes and the mere fact that the rent was not changed for a considerable time would not give rise to any inference of permanent tenancy. See the cases cited above [Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 51 I.A. 83 : 47 M. 337 : 28 C.W.N. 809 : A.I.R. 1924 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : L.R. 5 A. (P.C.) 33 (P.C.) and Secretary of State for India v. Luchmeswar Singh 16 I.A. 6 : 16 C. 223 : 13 Ind. Jur. 10 : 5 Sar. P.G.J. 275 (P.C.).] Under the circumstances I am unable to agree with the learned Judge below that the defendant had succeeded in proving that there was a permanent tenancy. There is no evidence that the rent with regard to such land had gone up, recently. On the other hand, the appellant says that the value of the land has increased only after the Improvement Trust had begun to acquire lands in that locality. That is, however, a question which we cannot on the record consider to have been established by either side. I am unable to hold, as I have already stated, that the defendant has been able to prove any permanent tenancy. That being so, he must be considered to be a tenant from year to year, although in the petition of the appellant it was stated that he was merely a tenant-at-will. The fact that the tenant had been in long possession may give rise to an inference that he was a tenant from year to year.
8. Next comes the question as to the amount of compensation which the appellant is entitled to get. The land was valued at the rate of Rs. 1,200 per cotta by the Collector. The total amount given for this piece of land would be Rs. 12,000. The land was a tank before it was filled up by the claimant No. 1. It was said on behalf of the respondents that it was done at the cost of 5 to 6 thousand rupees, as stated by one of the witnesses for the. plaintiff-appellant. No Evidence has been given on behalf of the defendants as to what amount was actually spent. Under the circumstances, I think it would be just and proper that the plaintiff should be allowed compensation with regard to the land valued only as tank which is generally valued at three-fourths of the value given for the tank-filled lands, that is to say, he will get Rs. 900 per cotta as compensation. Although there were banks which might have been differently valued from the land valued as tank, I think that if Rs. 900 per cotta is given all round, that would give some amount of compensation which the defendant would be entitled to get as his compensation for the unexpired period of his yearly tenancy.
9. I would, therefore, make this order that the appellant will be entitled to get Rs. 9,000 as the value of the land and Rs. 1,350, as the statutory allowance with interest at the rate of six per cent, per annum from the date when the claimants Nos. 1 and 2 received payment of the sum from the Collector up to this date. The total amount will bear interest at the rate of six per cent, per annum from this date until realisation.
10. As both the parties have gained to some extent and lost to some extent, we give no costs either in this Court or in the Court below.
11. I agree.