1. This appeal arises out of a suit for ejectment of the purchaser of a jote by the landlord. The plaintiff's case was that one Trailakhya Nath Choudhury was the former tenant of the jote, that the defendants were in possession as purchasers of the whole mouja and as Trailakhya or his heirs were not in possession of any portion of the jote, the defendants were trespassers although they purported to purchase the jote which was an ordinary non-occupancy holding or a non-permanent tenure which is not transferable. The defence was that the jama was a permanent tenure, that the son of Trailakhya had mortgaged it to the defendants' predecessor, Khetshi Das, who bought and obtained possession of the property in execution of the mortgage decree in 1903 and that the defendants purchased the jama from Khetshi in 1907 and had been in possession since then, Both the Courts below on this pleading and the evidence in the case have found that the plaintiffs have lost their right to recover possession by lapse of time, and that the defendants by asserting permanent right in the jote have acquired the right adversely to the plaintiffs. This finding recorded by the learned Judge is in the following words: 'We thus have that since 1903 Khetshi Das and subsequently the defendants have been holding this tenure asserting it to be a permanent tenure to the knowledge of the landlord.' This finding of fact in our judgment concludes the case. Three points have been argued in appeal by the learned advocate for the appellants.
2. The first is that there being no case sot up by the defendants as to the acquisition of any title of adverse possession, the lower appellate Court is wrong in holding that the defendants have acquired a permanent right by adverse possession. In order to understand this objection, it is necessary to refer to the pleadings in the case. The plaintiff's case, as made out in the plaint, is that as the heir of Trailakhya gave up possession of the jote without making any arrangement for payment of rent, the same should be regarded as having come into possession of the plaintiffs, and the defendants should therefore be regarded as trespassers illegally possessing the land; and further that as the jote was either a non-transferable occupancy or non-transferable non-permanent tenure, the heirs of Trailakhya having transferred the same without the consent of the plaintiffs and against their will, the defendants acquired no right or title to the disputed land and they were therefore trespassers. The defendants, on the other hand, pleaded that they had purchased an istimrari mokarrari tenure from Trailakhya's heir and thus they and their predecessor have been in possession of the disputed land for more than 20 years by virtue of such purchase and under assertion of such right. The Courts cannot, therefore, be said to be wrong in holding that the defendants and their predecessor have been holding it for more than 12 years with adverse possession of a limited interest and as they claim to hold the land as a permanent tenure the suit of the plaintiffs for ejectment is barred by limitation. Reference has been made, on behalf of the appellants, to the case of Madhavarao Waman v. Raghunath Venkatesh Despande A.I.R. 1923 P.C. 205 and it is argued on the authority of the pronouncement of their Lordships of the Judicial Committee that the defendants could not acquire any title by adverse possession as against the plaintiff landlords. The case referred to has no bearing on the present question. Their Lordships held that persons in possession who had a limited right cannot acquire a permanent right by adverse possession. The case of Beniprasad v. Dudh Nath Roy  27 Cal. 156 is next relied upon. That case too has no bearing on the present question. There it was held that a life tenant cannot acquire a higher title by adverse possession; or to put it more broadly, a tenant who is in possession of land under a certain right cannot acquire a higher right by merely asserting that he is a tenant of a superior class or possessing rights higher than what he already had in the land. This view of the law cannot be disputed. If a tenant is in possession of land and the landlord has not the immediate right of re-entry any assertion by the tenant would not make time run against the landlord for the reason that the landlord cannot claim any redress so long as he is not entitled to get possession of the land. To hold that whenever the tenant asserts a right which he did not possess, it is the duty of the landlord to repudiate such right would be to drive the landlord to have recourse to Courts of law almost every day merely because the tenant has chosen to assert a right which he does not possess. The real circumstance which makes the law of limitation run against the landlord is that he is entitled to possession. This principle has been enunciated in the case of Maharaja Birevdra Kissore Manikya v. Fuljan Bibi  25 Cri.L.J. 467, where it is said that while a contract of tenancy is in force, either party cannot practically obtain a variation thereof by persisting for a long period in his assertion that the term is otherwise than what it really is.
3. It is next argued that the defendants are not competent to claim any title by adverse possession as they stand in the shoes of Surendra or Trailakhya the nature of whose tenancy has not been investigated by the Courts below. The contention is that Surendra's tenancy was a temporary one and therefore the defendants who have purchased his tenure cannot claim a higher right than that possessed by Surendra. The question is whether the defendants really claim such right and whether the Courts below are wrong for not enquiring into the nature and the character of Surendra's tenancy. The Courts below have held that the defendants as purchasers purchased the property as a permanent tenure and they have been holding it since their purchase as a permanent tenure to the knowledge of the plaintiff. This fact gives rise to the claim of adverse possession in favour of the defendants.
4. The third contention is that the learned Judge is wrong in holding that the plaintiffs had knowledge of the possession of Khetshi Das in 1903 merely on the fact that Khetshi Das deposited rent in that year under Section 61, B.T.A. This is a question of fact which we cannot deal with in second appeal; under Section 63, B.T. Act notices must have been served upon the plaintiffs of the deposit and knowledge must be presumed therefore. It may also be presumed that the Court did what the law required it to do for the purpose and that the plaintiffs were informed of the deposit of rent by Khetshi. At any rate it is not the plaintiff's case that he looked to somebody else for rent. The finding of the lower appellate Court therefore that the defendants have acquired a permanent right in the tenure by adverse possession is based on consideration of facts and the evidence of the case. But it is not necessary to go so far in the present case in order to determine the plaintiff's right to eject the defendants. The case may be disposed of on the simple ground of limitation apart from adverse possession. The defendants claim to be in possession of the land as tenants for more than 12 years with the knowledge of the plaintiffs and therefore the latter's claim for ejectment must be taken to be barred according to the principle laid down in the case of Raktoo Singh v. Sudharan Ahir  8 Cri.L.J. 557 where it is held on the authority of the case of Dinomonee Debi v. Durga Prosad 21 W.R. 70 that in a suit for possession of land a mere assertion of tenancy does not deprive the tenant from pleading limitation and that it is open to the defendants in the first place to plead that the lands were comprised in their tenancy, and in the second place to assert that if the tenancy was not established, as they had held possession for more than 12 years, the right of the plaintiffs to recover possession was extinguished by the law of limitation.
5. It is further argued on behalf of the appellants that if the defendants had acquired the rights of a tenant by adverse possession their tenancy has been determined by the plaintiffs by service of notice. This question in fact is covered by the point we have dealt 'with above. The defendants have acquired by adverse possession the right to remain on the land as against the plaintiffs whose right to eject the defendant has been extinguished under the law of limitation.
6. Moreover, the plaintiffs came to Court on the allegation that the defendants were trespassers. They therefore cannot now set up a different case. On all these considerations we think that the decree of the lower appellate Court is correct and this appeal must be dismissed with costs.