1. This is an appeal by the defendants in a suit which was commenced by the plaintiffs-respondents so far back as the 14th April 1909 for apportionment of rent and for recovery of arrears. The litigation has had a chequered career during the last thirteen years. The trial Court dismissed the suit on the 17th January 1910. The District Judge affirmed this decision on the 21st November 1910. On second appeal to this Court, the suit was remanded for re-consideration' on the 14th March 1913, by Jenkins, C.J., and Mullick, J. On the 9th January 1914 the District Judge remitted the case to the Court of first instance for re-trial. On the nth May 1915 the Trial Court decreed the claim in p Article On the 23rd August 1916 the Subordinate Judge on appeal reversed this decision and dismissed the suit. On second appeal to this Court. N.R. Chatterjea and Newbould, JJ., set aside the decision of the Subordinate Judge on the 22nd March 1920, and remanded the case for re-consideration. On the 4th February 1921 the Subordinate Judge decreed the suit. The primary Court has thus decided on one occasion in favour of, and on another occasion against, the plaintiffs, while the lower Appellate Court has decided on one occasion in favour of, and on two occasions against, the plaintiffs. the last decision of the Subordinate Judge, which is in favour of the plaintiffs, has been assailed before us as vitiated by an error upon the question of adverse possession.
2. The facts material for the determination of the one point now in controversy lie in a narrow compass and may be shortly narrated. One Sibasundari Debi was the proprietor of a three-annas share of a tract of mal and lakhraj lands, measuring 1827 big has 11 cottahs in 761 plots. On the 8th July 1884 the first two defendants took a lease of this three-annas share which would comprise 342 bighas 10 cottahs; the 'annual rent was fixed at Rs. 793. The interest of Sibasundari Debi as landlord devolved on her death upon one Nilmadhab Chatterjee. On the 13th September 1892 the right, title and interest of Nilmadhab Chatterjee in 123 plots, which included an area of 248 bighas, was sold in execution, and was purchased by the plaintiffs. The sale was confirmed on the 24th November 1892 and symbolical possession was delivered to the purchasers on the 6th June 1895. On the 10th January 1893 the right, title and interest of Nilmadhab Chatterjee in the entire tract of 1827 bighas 11 cottahs was sold, in another execution, in a different Court of higher grade, when one Radhanath Sarkar became the purchaser. This sale was confirmed on the 10th April 1893 and symbolical possession was delivered to the purchaser on the 31st January 1896. The defendants took a conveyance on the 4th February 1896, from Radhanath Sarkar, of the title acquired by him at the second execution sale. On the 14th April 1909 the plaintiffs commenced the present action against the defendants for apportionment of rent and recovery of arrears in respect of the three-annas share of 248 bighas purchased by them at the execution sale held on the 15th September 1892. The plaintiffs assigned to the defendants the position of tenants under the lease of the 8th July 1884. The only defence which is material at this stage and requires consideration is, that at the date of the suit, the plaintiffs had no subsisting title, as the defendants had acquired a good title by adverse possession since the 4th February 1896, when they took the conveyance from the purchaser at the second execution sale.
3. It is incontrovertible that Radhanath Sarkar, the purchaser at the execution sale held on the 10th January 1893, did not acquire a title which could prevail against the plaintiffs. No doubt, his purchase was at a sale held by a Court of a grade higher than that of the Court which held the sale of the 15th September 1892, when the plaintiffs became the purchasers. It may further be. conceded that the sale was held in contravention of the provisions of Section 285 of the Civil procedure Code of 1882, which prescribed that when a property was under attachment by two Courts of different grades, the sale should be held by the Court of higher grade. It is well-settled, however, that a contravention of this provision did not invalidate the sale, if any, held by the Court of lower grade: Bykant Nath Shaha v. Rajendra Narain Rai 12 C. 333 : 6 Ind. Dec. (N.S.) 227, Ram Narain Singh v. Mina Koery 25 C. 46 : 13 Ind. Dec. (N.S.) 32, Gopi Chand v. Kasimunnessa Khatun 34 C. 836 : 6 C.L.J. 130. This view, it may be noted, has received legislative approval in Section 63 of the Code of 1908. Consequently, when the sale in favour of the plaintiffs was confirmed on the 24th November 1892 the title vested in them as auction-purchasers, and nothing was left in the judgment-debtor Nilmadhab Chatterjee which could pass to the purchaser at the subsequent sale. There is thus no escape from the position that the purchaser at the second sale could not convey a valid title in the superior interest to the defendants by his convey ance of the 4th February 1896. The only result of the conveyance was that the defendants, who were lessees under the grant of the 8th July 1884, were placed in a position to set up an unfounded title to the superior interest. The plaintiffs, as already tated, did not, however, institute the present action till the 14th April 1909, in other words, after the lapse of more than twelve years from the 4th February 1896, when the defendants claimed to have acquired the superior interest in derogation of the purchase of that very interest by the plaintiffs on the 15th September 1892. The question thus arises, whether the title of the plaintiffs has been extinguished by the hostile possession on behalf of the defendants for the statutory period.
4. It has been found by the Subordinate Judge that neither the plaintiffs after their purchase on the 15th September 1892, nor Radhanath Sarkar after his purchase on the 10th January 1893, ever realised rent from the defendants; in other words, the defendants have occupied the lands without payment of rent either to the rightful proprietors or to the rival claimant. This, however, is clearly insufficient to constitute adverse possession, because, as ruled in Prosonna Kumar Mukherjee v. Srikant Raut 16 Ind. Cas. 365 : 40 C. 173 : 16 C.L.J. 202 : 17 C.W.N. 137, which was approved by the Jud(sic)cial Committee in Jagaeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 49 I.A. 399 : 36 C.L.J. 499 : 3 P.L.T. 605 : (1922) A.I.R. (P.C.) 272 32 M.L.T. 15 (1923) M.W.N. 361 : 2 Pat. 38 : 27 C.W.N. 925 : 45 M.L.J. 460 (P.C.), mere non-payment of rent or discontinuance of payment of rent does not by itself create adverse possession. We have, consequently, to consider the principles applicable to questions of adverse possession between landlord and tenant.
5. As a general rule, the possession of a tenant is that of his landlord and will be so deemed until the contrary appears. This fundamental rule affects all who may succeed to the possession, immediately or remotely, through or under the tenant. From this point of view, it is clear that, so long as the relationship of landlord and tenant exists, the tenant cannot, subject to the qualification presently to be stated, acquirean adverse title as against his landlord. This is merely one application of the rule that the tenant cannot deny his landlord's title; see the decisions in Bhaiganti Bewa v. Himmat Bidyakar 35 Ind. Cas. 7 : 24 C.L.J. 103 : 20 C.W.N. 1135 and Reajuddin Bepari v. Chand Baksha Haji 35 Ind. Cas. 28 : 24 C.L.J. 453. It is equally well settled, however, that one who enters as tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. But to enable him to do so, it is necessary for him to renounce the idea of holding as tenant and to set up and assert an exclusive right in himself. It is further essential that the landlord should have actual notice of the tenant's claim, or that the tenant's acts of ownership should be of such an open, notorious and hostile character that the landlord must have known of it. Such conduct on the part of the tenant necessarily furnishes the landlord with the legal right to enter and re-possess himself of the premises. Hence an adverse possession by the tenant cannot be predicated from the mere fact of non-payment of rent or discontinuance of payment of rent, unless, in connection therewith, the landlord has been apprised that the tenant claims title in himself. When the tenant thus disclaims the title of the landlord, claims title in himself, and the landlord has notice of that fact, it has the effect of an ouster and disseisin, even though this has happened during the continuance of the term. The theory on which adverse possession becomes a perfect title is that the true owner has, by his own fault, tailed to assert his right against the hostile holder. Consequently, where possession is originally taken and held under the true owner, a clear, positive, and continued disclaimer and disavowal of title, and an assertion of an adverse right brought home to the true owner are indispensable before any foundation can be laid for the operation of the Statute of Limitations. Without this, the length of the occupation is immaterial and does not affect the title; possession or the full period of limitation must have elapsed after repudiation before title based thereon can be acquired. If the rule were otherwise, the greatest injustice might be done; without such knowledge of the repudiation, the landlord has the right to rely upon the fiduciary relation under which the possession was originally taken. As has been well said, a possession commencing under the authority of or in subordination to the true title dees not become transformed into a hostile one, by a mere change in mental attitude. It must be shown that the true owner had knowledge of the adverse holding, or it must be so open and notorious as to raise a presumption of notice to him.
6. The case before us has not been considered from this point of view, and such facts as ate found in the judgment of the Subordinate Judge are not sufficient to enable us to decide the question. The plaint in a previous rent suit filed by the plaintiffs on the 19th March 1895 shows that they were then aware of the purchase made by Radhanath Sarkar at the execution sale held on the 10th January 1893. The plaint filed by the plaintiffs in the title suit on the 3rd November 1902 shows that they were at that date aware of the purchase made by the defendants from Radhanath Sarkar. But we are unable to determine, when the plaintiffs were first apprised of the conveyance. If the plaintiffs became aware of the conveyance more than twelve years before the institution of the present suit, that is, between the 4th February 1896 and 13th April 1897, they had knowledge of the adverse claim for longer than the statutory period. This question must be investigated before a decree is made in favour of the plaintiffs. We regret that another remand is necessary, but we cannot overlook that the plaintiffs are in a large measure responsible for their difficulties. They have created a cobweb of fictitious titles which has effectively obscured the real question at issue.
7. The result is that this appeal is allowed, the decision of the Subordinate Judge set as de and the case remanded to him for re-consideration of the following question only:
Did the plaintiffs become first aware of the conveyance executed by Radhanath Sarkar on the 4th February 1896 in favour of the defendants, more than twelve years before the 14th April 1909 when the present litigation was commenced.
8. If the question is answered in the affirmative, the suit will stand dismissed. If the question is answered in the negative, the suit will stand decreed.
9. The Subordinate Judge will take such additional evidence on this point as may be adduced by the parties. Costs will abide the result.