1. The plaintiff seeks for recovery of possession of a small plot of land adjourning a dharamsala. He is the proprietor of a fifteen annas 6 dams share of the mauza in which the land lies and he made the proprietors of the remaining share defendants.
2. Under a pattah, bearing a date corresponding, as I was told, to the 12th June 1872, the plaintiff leased to the late Rai Dhanpat Singh Bahadur certain land, 1 bigha 3 cattahs in area, for the purpose of building thereon a dharamsala. A dharamsala, was accordingly constructed, of which the defendants first party are now the trustees, and the defendant second party is the manager. The disputed land adjoins the dharamsala on the east. The Munsif who tried the case in the first instance made a local enquiry and found that the boundaries of the disputed land were correctly given in the plaint and that the area of the land was 6 cottahs. It is now conceded by the principal defendants that the land is not covered by the pattah granted to Rai Dhanpat Singh Bahadur and that it was never formerly settled with him or them. The controversy at this stage is confined to the question whether the suit is or is not barred by limitation.
3. The learned Munsif went very carefully into the evidence and came to the conclusion that even if Rai Dhanpat had no lawful right it was clear that he had acquired a right by adverse possession. The learned Subordinate Judge did not deal with the question of possession and has recorded no finding on that question. He adverted to the fact, which is admitted, that from the date of the pattah until a year or two before the institution of the suit the mauza had been continuously in the possession of ticcadars, and he decided that that being so, limitation did not begin to run against the plaintiff until the termination of what may be called the ticca period. It appears to me that there is a flaw in this reasoning. It is not shown and it is not contended that the ticca period is covered by one lease. There were successive leases and there is good authority for the view that if the representatives of the dharamsala were in possession, as on the facts as found by the Munsif they must have been, at the date of the termination of any one of the leases, time would begin to run against the plaintiff from that date, because at such date at any rate the plaintiff recovered his right to sue for ejectment and if he again leased the property without exercising that right he had only himself to blame Of. Ecclesiastical Commissioners v. Rowe 5 App. Cas. 736, at p. 742. In Kishwar Nath Sahi Dev v. Kali Sanakr Sahai 10 C.W.N. 343 all that is decided is that when a landlord is dispossessed of land held by a tenant under a lease, time does not begin to run against the landlord until the expiration of that lease. Nothing is said about the further point which arises here. The contention to which the learned Subordinate Judge gave effect was apparently not put forward in the Court of first instance. I inquired as to the times of the different ticca leases, but was unable to obtain information on the subject. It is clear, therefore, that if I have stated the law correctly and if the learned Subordinate Judge bad had his attention drawn to the point, he would not have been in a position on the evidence before him to say precisely when time began to run against the plaintiff or to find that the suit was not barred by limitation. In a case such as the present where the defendants claim to hold the land in dispute as an adjunct or accession to the land covered by their pattah, the article of the schedule of the Limitation Act, which is applicable, is article 142 and it was for the plaintiff to show that he had been in possession within twelve years of the date of the institution of the suit or that he had a right to sue. Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty 2 C.L.J. 125. In the circumstances the Subordinate Judge should have rejected the contention urged for the plaintiff and should Lave come to a finding on the question of adverse possession. I might remand the case for a determination of that question by him, but I think such a course would cause unnecessary delay and expense. The finding of the learned Munsif appears to me to be incontrovertible and that apart from any documentary evidence on which he has relied, it seems to rue clear that the representatives of the dharamsala encroached upon the land in dispute more than 12 years ago and have had possession of it ever since and that the suit is barred by limitation. I decide accordingly under Section 103 of the new Code of Civil Procedure. The principal defendants can obtain no higher title to the land than that which they claim as tenants, and I understand that they are willing to pay a reasonable rent for the land. The appeal is allowed. The decree of the lower appellate Court is set aside and the decree of the Court of first instance is restored. The plaintiff will pay the costs of the contesting defendants in this Court and the Courts below.