1. In our opinion, the point which has been argued before us here, whether the defendant No. 1 can set up the defence that he has set up in the present suit for possession, is concluded by authority. The plaintiff brought a suit against the defendant No. 1 for rent. In that suit, the defendant No. 1 said that he was not the tenant of the plaintiff and resisted the claim for rent on that ground. What is more, in his deposition he said that the plaintiff was not his landlord and that he held the land under a third party. On that defence, the plaintiff's first suit was dismissed. He now sues again to recover the land from, the defendant on the ground that the defendant is a trespasser. It has been held in a number of decisions of this Court that the defendant in. such a case is debarred from again pleading his tenancy and claiming to hold possession on that ground. We may refer to the cases of Nilmadhab Bose v. Ananta Ram Bagdi 2 C.W.N. 755. Fayj Dhali v. Aftabuddin Sirdar 6 C.W.N. 575. Ramgati Mohurer v. Pranhari Seal 3 C.L.J. 201, and Khater Mistri v. Sadruddi Khan 34 C. 922. The learned pleader for the appellant relied upon the case of Srimati Mallika Dassi v. Makham Lal Chowdhry 9 C.W.N. 928. No doubt, in that case the learned Judge remarked, though it was purely an obiter dictum, that they were doubtful whether the decision, in Nilmadhab Bose v. Ananta Ram Bagdi 2 C.W.N. 755 and Fayj Dhali v. Aftabuddin Sirdar 6 C.W.N. 575, above referred to could be reconciled with the earlier decision in Debiruddi v. Abdur Rahim 17 C. 196 Dhora Kairi v. Ram Jewan Kairi 20 C. 101. The facts, however, of the case in Srimati Mallika Dassi v. Makham Lal Chowdhry 9 C.W.N. 928, are quite distinguishable from the cases which we have cited in the present case. There the plaintiff was only one of several co-sharers and the defendant resisted his claim in a suit for rent on that ground and it was held that he was not thereby debarred from pleading tenancy in a subsequent suit in ejectment. Here, as in the cases first cited, the defendant No. 1 has wholly denied the plaintiff's title. Following these cases, we think that this appeal cannot possibly succeed on that ground.
2. The learned pleader for the appellant has attempted further to argue that this suit is barred by limitation. The first defendant took that plea in the first Court and the finding of fact was against him. It was to the effect that the suit had been brought within 12 years from the date of the delivery of possession to the plaintiff of his saham through the Collector and that there was no question about adverse possession before the partition. This finding was not questioned by the first defendant in the Court of Appeal below and it must, therefore, be taken as standing against him.
3. For these reasons, we think that the appeal fails and must be dismissed with costs.