1. This is an appeal on behalf of the defendants in a suit for rent. The dispute is limited to a six-annas share of the property which the plaintiff claims to have purchased on the 15th May 1905 at a sale held under Regulation VIII of 1819. The defence is substantially two-fold, namely, first, that the claim is barred by res judicata, as a suit by a previous patnidar in 1895 failed on the ground that the relationship of landlord and tenant between the then plaintiff and the defendants was not established; and secondly, that the claim is barred by limitation.
2. In so far as the first ground is concerned, it is entirely untenable. The plaintiff is a purchaser at a sale under Regulation VIII of 1819. Consequently, although his position may not be precisely that of a purchaser at a sale for arrears of revenue Moizuddi Biswas v. Ishan Chandra 13 C.L.J. 293 7 Ind. Cas. 849 : 16 C.W.N 706 yet he is not privy in estate to the defaulting proprietor and he 'does not derive his title from him, as, under Section 11 of the Regulation, he has acquired he property free of all encumbrances that might have been created upon it by the act of the defaulter, his representatives or assignees. This is clear from the cases of Tara Prasad Mitter v. Ram Nursingh Mitter 6 B.L.R. Ap. 5 : 14 W.R. 283 and Radha Cobind Koer v. Rakhal Das Mukherji 12 C. 82 at p. 90. The first contention, therefore, fails.
3. In so far as the second contention is concerned, it is equally groundless. It is argued, not that the claim for rent is barred by limitation, but that the title to recover rent has been extinguished by adverse possession on the part of the defendants. Now, as already stated, the plaintiff purchased the property on the 15th May 1905 and the case of Nuffer Chandra Pal Chowdhry v. Rajendra Lal Goswami 25 C. 167 shows that if an action in ejectment were brought, limitation would be taken to run against the plaintiff only from the date when his purchase became final. There is, therefore, no substance in the second contention.
4. It has been finally suggested, somewhat faintly, that the plaintiffs are bound to show by overt act that they have elected to extinguish the interest of the defendants. But it is clear, upon the authority of the cases of Modhoo Soodun Koondoo v. Ramdhan Gangolee 12 W.R. 383 and Titu Bibi v. Mohesh Chunder Bagchi 9 C. 683 that the plaintiff need not take any steps, before the suit is brought, to annul the encumbrance. As a matter of fact, however, it is an entirely unfounded assumption that there is any encumbrance at all to annul in the present instance. The case of Gokul Bagdi v. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C.L.J. 136 shows that the interest of an adverse possessor is an encumbrance only when the adverse possession has continued for the statutory period. Here, the adverse possession of the defendant was asserted by the sale of the patni on the 15th May 1905. The defendants had been in adverse possession, even if it be assumed that there was adverse possession on their part, for ten years, when the interest of the patnidar was sold out under the Regulation. Their title as adverse possession had not, therefore been perfected, when the plaintiffs as purchasers became entitled to the property and so far as the plaintiffs are concerned, no title has been acquired against them since their purchase.
5. The result is that the decree of the Court below is affirmed and this appeal dismissed with costs.
6. It is conceded that this judgment will govern the other appeal (Second Appeal No. 770 of 1909) which is, therefore, also dismissed with casts.