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Kumar Gopika Raman Roy Vs. Atal Singh and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in85Ind.Cas.678
AppellantKumar Gopika Raman Roy
RespondentAtal Singh and ors.
Cases Referred and Mod Lai Pal Chowdhury v. Chandra Coomar Sen
landlord and tenant - adverse possession by tenant, whether possible--construction of decree--decree in ejectment suit directing defendants not to be ejected on compliance with certain conditions, effect of--defendants, whether constituted tenants--civil procedure code (act v of 1908), order xxii, rule 2, order xxiii, rule 3--compromise by some of parties to suit--court, whether can reject compromise--appeal--death of one of several respondents, effect of--abatement. - newbould, j.1. the plaintiff kumar gopika raman, bay who is the appellant before us, sued for khas possession of a large area of land about 20 square miles in village patharkandy in the karimgung sub-division of the district of sylhet. he claimed the land as appertaining to permanently settled estate no. 85 of the sylhet collectorate of which, he owns a 1/7th share. in schedule i of the plaint the lands of mouza patharkandy in estate no. 85 are described. schedule ii specifies the lands which were allotted to this 1/7th share by an amicable partition between the predecessor-in-interest. the maharaja of manipur and his co-sharers. in schedules iii and iv ale set out certain lands which though parts of the land of schedule ii are not included in the claim of the present suit. the lands' of.....

Newbould, J.

1. The plaintiff Kumar Gopika Raman, Bay who is the appellant before us, sued for khas possession of a large area of land about 20 square miles in village Patharkandy in the Karimgung Sub-Division of the District of Sylhet. He claimed the land as appertaining to permanently settled Estate No. 85 of the Sylhet Collectorate of which, he owns a 1/7th share. In Schedule I of the plaint the lands of Mouza Patharkandy in Estate No. 85 are described. Schedule II specifies the lands which were allotted to this 1/7th share by an amicable partition between the predecessor-in-interest. the Maharaja of Manipur and his co-sharers. In Schedules III and IV ale set out certain lands which though parts of the land of Schedule II are not included in the claim of the present suit. The lands' of Schedule III were acquired by Government under the Land Acquisition Act. The land of Schedule IV was the subject of the previous suit in which the plaintiff a father obtained a decree for khas possession-after ejectment of the tenant defendant, Abjal Ali.

2. The suit was brought against 187 defendants. The first 160 were sued as tenants in occupation of the lands in. suit but it was alleged that their tenancies had been determined by reason of 120 suits brought by the plaintiffs father against these defendants or their predecessors-in-interest in the years 1903 and 1904. The majority of these defendants are Manipuris but among them are a few Muhammadans and one Hindu of Patni caste. Defendant No. 161 Molay Chand Thakur was joined as a defendant on the allegation that defendant No. 148 Dinamani Singh had executed a collusive and fictitious deed of conveyance in his name. Defendants Nos. 162 to 186 were joined as pro forma defendants being the plaintiff's co-sharers in Estate No. 85. Defendant No. 187 Juramal Tushniwal was the purchaser of the 1/7th share of the Estate which had belonged to the Maharaja of Manipur and the plaintiffs father bought the rights of the defendants.

3. The suit was instituted on the 7th October 1912 and was dismissed on the 24th March 1919. The appeal was filed on the 13th August 1919. In addition to the time taken in the actual hearing of the suit, much delay was unavoidable owing to the necessity of making substitution on the deaths of several of the original defendants. As it is, necessary substitutions have not been made in all cases of death among the first 160 defendants both during the hearing of the suit and the pendency of this appeal.

4. The history of events according to the case for the plaintiff-appellant is as follows: About 1840 the zemindars of the permanently settled Estate No, 85 known as Taluk Muhammad Jalal were some persons described as the Ghowdhuries of Chayabari. A number of Manipuris settled and cleared of jungle portions of the land of this estate. There was a dispute between the zemindars and these Manipuris which was the subject of proceedings before the Revenue Authorities. The Manipuris were at first successful and obtained orders of a Deputy Collector in 1814 declaring that the land held by them were not lands of Mouza Patharkandy appertaining to the permanently settled Estate No. 85 but lands to which Government had a right of Settlement as Ham lands There was long litigation, the zemindar being successful before the Collector, and Commissioner and the Manipuris being at first successful in an appeal to the Board of Revenue but this decision was reversed on review and a final order was passed in the zemindar s favour on 12th February 1852. The rents paid by. those Manipuris who had taken Settlement from Government were refunded to the zemindars. Then in Suit No. 9 of 1854 some of the Chayabari Ghowdhuries sued the tenants on the lands for recovery of possession and mesne profits. They were successful in this suit but it was ordered in the decree, dated 30th July 1855 'that as long as the defendants are ready and willing to pay the rents according to the legal rates of the village, they should not be ousted from their right as jotedar.' The defendants in this suit were the predecessors-in-interest of defendants Nos. 1 to 160 in the present suit. At the time of the thak Survey the-dispute broke out again and was decided on the 29th August 1863 in favour of the Ghowdhuries of Chayabari. In 1867 the interest of one of these Chowdhuries Krishna Prosad Das, 1/8th share of Estate No. 85, was sold in execution of a decree against him and was bought on behalf of the Maharaja of the Native State of Manipur. In addition to their 1/8th share another undivided 1/56th share was purchased and the Manipuri State thus became the owner of an undivided share 1/7th share of Estate No. 85. There was a partition by amicable arrangement between the Maharaja; and his co-sharers by which the specific lands of Schedule II were allotted to the Manipuri Estate. While the Maharaja was in possession of these lands by collection of rents from the tenants, Government again claimed these lands as inam lands and rents were realised from the occupants by-Government Tehsil Officers. These rents 'were refunded to those who had paid them; under an order of the Deputy Commissioner' of Sylhet dated 22nd December 1882. After that rents were collected by the Maharaja's-Officers until the rebellion in Manipur in 1891. In. consequence of this rebellion the reigning Chief was deposed and all the properties of the Manipur State including the lands in suit were confiscated and became the property of the British Government by an Act of State. The British Government; then placed Chura Chandra Singh, a Elinor on the throne of Manipur and restored, to him the properties which had formerly belonged to that State. An Administrator of the State was appointed and he under the orders of the Government of India sold the Sylhet properties of the State by public auction. At this sale Juarmal Tushinwal bought the property of the Second Schedule to the estate and a deed of conveyance in his favour was executed by the Administrator of the State as guardian of the minor on the 5th March 1896. On the 6th, June in the same year, Juarmal sold this property to Raja Girish Chandra Roy the father of the plaintiff. The plaintiff's father applied under the provisions of Section 38 of Act VIII of 1869 for a measurement of the lands but these proceedings were dropped in consequence of objections taken by Dinamani Singh, defendant No. 148. In 1903 some land of Mouza Patharkandy was acquired under the Land Acquisition Act, claims to the compensation money were put forward by several of the Manipuri defendants in the present suit but these claims were rejected and the compensation awarded to the plaintiff's father and his co-sharers the Chayabari Chowdhuries on the 26th August 1904. The 120 suits against the first 160 defendants or their predecessors, to which reference had already been made, were instituted in batches on five different dates, the earliest being 28th January 1903 and the latest 11th April 1904. These suits were all tried together and dismissed in the Munsif's Court on the 21st May 1906. Appeals to the District Judge were dismissed, on the 24th July 1907. Second appeals were preferred to this Court and on the 26th August 1910 the present plaintiff, who had succeeded to his father's interest, obtained permission to withdraw the suits with liberty to bring fresh suits on the same cause of action or any other causes of action as he might be advised. The sale to defendant No. 161 to which reference was made in the plaint appears from the defence evidence to have been by the deed Ex. F dated 8th September 1904. This deed has been executed not only by Dinamani Singh defendant No. 148 but also by eighteen other Manipuris including defendants Nos. 16, 52, 88, 89, 91, 125 and 148.

5. At the trial in the lower Court 29 issues were framed. Nine of these including the most important issues as to title and limitation were decided against the plaintiff. Though we are unable to agree with the learned Subordinate Judge on several of his findings we hold on a full consideration of the case after a very lengthy hearing that the issue of limitation must be decided in the respondents favour. We accept the contentions of the learned Government Pleader that the plaintiff has established his title to 1/7th share of. Taluk No. 85 Muhammad Jalal. It was not necessary for the plaintiff to trace back the title of the Chayabari Chowdhuries to Muhammad Jalal after whom the taluk was named at the time of the Permanent Settlement. Though there is no evidence to show how the 1/8th share purchased from Krishna Prosad Das was increased to 1/7th, there is satisfactory evidence that since 1887 the Maharaja of Manipur and. subsequently the plaintiff's father and the plaintiff have been asserting their right to a 1/7th share without any opposition from their co-sharers. We differ entirely from the learned Subordinate. Judge's finding as to the effect of what was done by Government in consequence of the Manipur rebellion in 1891. In the first place we are unable to accept his finding that the original purchase by the Maharaja of Manipur was made in his private capacity and not as head of the State. Further we hold that the Crown did, by an Act of State, confiscate all property of the former Maharaja including' his interest 'in the Tuluk No. 85. The Crown waived its right to annexation and vested the property in the Raja appointed by it, Ohura Chand Singh. By the indenture Ex. 3 there Was a valid conveyance to Juarmal the plaintiff's father's vendor of the right of the' infant Raja to a 1/7th share of the taluk. We are unable to accept the contention of the learned Government Pleader that the effect of this Act of State was to give the new Raja a better title than the former Maharaja. As the Government never exercised any acts of possession over this land after the annexation of the Maharaja's property the proprietary rights, if any, obtained by others by adverse possession would not be affected. We further hold that the issue of title was raised, and decided as between the plaintiff's father and those Manipuri defendants who were parties to the Land Acquisition Proceedings, decided by the District Judge of Sylhet in his judgment Ex. 5-A dated 26th August 1904. It is, therefore, res judicata as between the plaintiff and those defendants and also defendant No. 16 1 since he claims by purchase from these defendants. The plaintiff's evidence to prove his title to a 1/7th share of Taluk No. 85 is un-rebutted. The contesting defendants do not claim any right in that taluk and the other sharers in that taluk do not dispute the extent of his share. The omission to join two persons Benod Behari and Bon Behari, who according to plaintiff's witness No. 5 have still their share in Taluk No. 85 is not fatal to the plaintiff's case on this issue. From the evidence of this witness ' it appears that their share is a part of the 1/7th share in which defendants Nos. 174, 175, 178; 186 and 177 also have an interest. Also their father Bepin Krishna was a party to the suit in which the plaintiff's father's right as owner of 1/7th share to eject Abjal from the-land of Schedule IV was established.

6. But though we hold that the plaintiff has established his title to a 1/7th share of Taluk No. 85 we hold that his claim to the lands in suit as appertaining to his share of that taluk is barred by limitation. Admittedly the plaintiff, his father and his father's vendor Juarmal never collected rents from any of the first 160 defendants, after the latter's purchase of the property on the 29th October 1895, nearly seventeen years before the institution of this suit. We agree with the learned Subordinate Judge that having regard to the provisions of Rule 2, Order XXIII of the C.P.C. the appellant cannot take advantage of the provisions of Section 14 of the Limitation Act and include the time occupied in, the litigation of the former 120 suits. The point that was most strongly pressed before us was that the defendants or their predecessors having once been tenants of the owners of the proprietary right in these lands, their possession could not be adverse until the tenancy was determined. On behalf of the respondents it is contended that the first 160 defendants or their predecessors never were tenants of the plaintiff or his predecessors. It was also argued in the alternative that the general rule, that the possession of a tenant is that of his land-lord does not absolutely preclude one who enters as a tenant from subsequently holding adversely to his landlord and that the facts of the present, case are sufficient to bring it within the exception to which reference is made in Giris Chandra Gangopadhyd v. Krishna De Nag 75 Ind. Cas. 325 : 38 C.L.J. 266 at p. 271 : (1921) A.I.R. (C.) 168. It is further argued that if there was the relationship, of landlord and tenant between the parties it terminated; if not earlier, on the 15th December 1896 the date given as the cause of actions in each of the previous 120 suits, the cause of action being. stated to be 'the possession of the principal defendant in the land claimed alleging his own right therein and denying that of the plaintiff.'<

7. Therefore, on this issue of limitation the r first question to be decided is whether the existence of the relationship of landlord and tenant has been proved by the plaintiff. The plaint and decree in Suit No. 9 of 1854, Exs. 19 and 19 (a) though relied on by the plaintiff do not assist him on this point. The result of this litigation was that the plaintiffs predecessor obtained a decree in ejectment. We agree with the lower Court's finding that the defendants in that suit must beheld to have been the predecessors-in-interest of the defendants Nos. 1 to 160 in this suit. The result of that suit so far from creating a relationship of landlord and tenant between the parties would have been to destroy such a relationship if it had existed previously. The provision in the decree that the defendants should not be ousted from their right as jotedars if they were willing to pay rent is of no assistance to the plaintiff's contention that they became tenants after the decree. This provision would have enabled the defendant to prevent the decree from being executed by attorning to the decree-holders. The allegation in para. 10 of the plaint that the Chowdhuries got possession of the decretal lands through the Court is inconsistent with the statement in the following paragraph that the defendants in Suit No. 9 of 1854 were allowed by the decree to retain possession of the land as tenants under the Chowdhuries. The fact that the decree-holders got possession through the Court shows-that the judgment-debtors did not take advantage of the condition in the decree which would enable them to avoid ejectment. If after the execution of the decree they retained or regamed possession, such possession would be the possession of trespassers and the plaintiff must prove attornment by them subsequent to the execution of the decree.

8. The next piece of documentary evidence in chronological order on which reliance is placed by the plaintiff-appellant to prove tenancy is Ex. 5. This is a certified copy of the award under Regulation VII of 1882, dated 29th August 1863. This award was made on an objection by the Chowdhuries to the thak proceedings of 1862. In deciding the issue of title in favour of the Chowdhuries the Deputy Collector made some remarks about their possession' by realisation of rents through tenants and also about the nature of the defendant's possession which are favourable to the case for the appellant. But in the thak proceedings the only question for decision was who had the proprietary right and all that was judicially decided was that those defendants who were predecessors of some of the first 160 defendants in this suit, had not proprietary rights. It was not a judicial decision that they were tenants of the Chowdhuries and there are other remarks in the award which support the respondents' contention that those defendants were then holding the land not as tenants but in assertion of their own right. I hold, therefore, that this document is of very slight value as evidence of the alleged tenancy.

9. The oral evidence of the plaintiff's witness to prove realisation of rents from the defendants Nos. 1 to 160 and their predecessors by the Manipur Raj up to the Manipur War of 1891 has been disbelieved by the learned Subordinate Judge in whose presence the witnesses were examined. After hearing the evidence read to us-we have come to the same conclusions. The evidence of these witnesses is contradicted by facts established by reliable evidence. There can be no doubt that the Manipur Raj was out of possession during the time that Government treated these lands as Ham lands from 1877 to 1882. In the judgment of the lower Court good reasons based on the. evidence of independent witnesses examined by the plaintiff are given for holding that no rents were collected by the Manipur Raj after the release of the lands by Government in 1882. In addition to the evidence considered by the lower Court there is also a document which for reasons recorded on the order sheet, we have admitted in evidence at the hearing of the appeal though it was rejected at the trial. This is a certified copy of a petition dated 13th Baisakh 1293 B.S. There is an obvious mistake in date which should be 1294 and the corresponding correct date is the 25th April 1887. The document was relied on by the plaintiff to prove the alleged partition but it contains an admission, which is so favourable to the defendants on the question of possession that we are surprised that objection should have been taken to it being made a part of the record. This petition was filed on behalf of the Maharaja of Manipur and some of the Chowdhuries asking for a general proclamation to inform the tenants, that rents were to be paid to the petitioners in consequence of the lands being relesed from being Ham lands. This petition makes it obvious that for some years after the Government ceased treating the lands as Ham, the Manipur Raj was unable to collect rents. This strongly corroborates the other evidence on which the lower Court has based its finding that the plaintiff-appellant's predecessor-in-interest was not in possession by receipt of rent from 1887 to 1891.

10. This document also supports the respondents' case that there was no effective partition between the co-sharers of the Estate No. 85 which resulted in the Manipur Raj obtaining separate possession of the lands in suit. The description of the pieces of land allotted to each co-sharer indicates that the partition was a paper transaction and not an actual division of the land. The portions of land of each share are exactly equal in area. In a real partition there would have been some differences in area dependent on such considerations as the quality of the land, whether it was in occupation of tenants' or not the nature of the tenancies and other matters. Further the boundaries given, except where they are the external boundaries of the land of the taluk, are not described by natural features or the names of the persons in occupation but as the land allotted to one of the other co-sharers. Such a partition could be demarcated by lines drawn on a map but if these lines were shown by boundaries put up on the land the result would be that the lines would frequently cross holdings of the tenants. This would not have been the case if there had been a real partition between co-sharer landlords who were in possession by collection of rent. Reliance re placed oh the Land Acquisition Proceedings of 1903. The partition was then admitted by the, plaintiff's father and his co-sharers but it was not in issue between them and the other claimants. This finding cannot operate as res judicata on the question of partition, as between the plaintiff and defendants in the, present suit. It is, unnecessary to add anything to the remarks in the judgment of the lower Court as to the unsatisfactory nature of the oral evidence to prove the alleged partition. For the reasons above given, I agree with the findings of the lower Court that since the passing of the decree in Suit No. 9 of 1854 there was no relation of landlord and tenant between the plaintiff's predecessors and the predecessors of defendants Nos. 1 to 160. It follows from this finding that the plaintiff's suit is barred by limitation and that this appeal must be dismissed.

11. I will, however, refer shortly to the more important of the other points that were argued before us. There were long and able arguments on the alternative plea of the respondents that if a tenancy were proved nevertheless the possession of the principal defendants became adverse more than twelve years before suit. The respondents having denied that they ever held the land as the tenants would find it difficult, if they had failed in this contention, to establish conduct on their part which would have the effect of ouster and diseasing of their landlord. But they would have a strong case on their contention that the tenancy if it ever existed came to an end by disclaimer accepted by their landlord as-was admitted in the plaints in the former 120 suits. In para. 33 of the plaint in the present suit it is pleaded that the plaintiff's father wrongly and erroneously based his cause of actions on an alleged denial of his title by the defendants and their predecessors. It appears to me that this admission was more than a mistake of law but included an admission from which an inference 'of fact can be drawn that the tenants disclaimer had been accepted on the 15th December 1896. There is nothing to rebut this inference and would hold, therefore, that this alternative plea of the defendants also succeeds on this ground.

12. Even if our finding on the main, issues had been in favour of the appellants we should have had to dismiss the appeal against several of the first 160 defendants. In the case of some, the appeal has abated owing to their deaths during the pendency of the appeal without an order being obtained setting aside the abatement. This appeal was heard in part before another Divisional Bench and during that hearing the appeal was dismissed as against the first 160 defendants on the 4th, July 1922. On 27th July 1923 that order was reviewed and the dismissal set aside as against all those respondents on whom, the rule was served. The order of dismissal still stands as against some respondents who were not served with-notice of the rule. It is contended that as the plaintiff in para. 3 of the plaint alleged joint possession by the tenant defendants, the appeal when dismissed against some must be dismissed against all. But reading the plaint as a whole and more particularly having regard to the fact that the land held by each of the first 160 defendants is specifically described in the Second Schedule, we hold that the appeal should not be dismissed on this ground against all these defendants though it would fail in respect of those specific plots where a respondent against whom the appeal is dismissed is shown as holding the land with another respondent. But the learned Government Pleader who appeared for the appellant stated in his reply that he did not ask for a decree in ejectment against any of the first 160 respondents but would be content with such a decree against defendant No. 161 in the presence of those respondents who are still parties to this appeal with a declaration of title.

13. On the findings of the lower Court as to issues Nos. 17 and 23 it would appear that even if others were successful, the plaintiff would not have been entitled to a decree to the whole of the land described in Schedule II of the plaint.

14. It is finally contended that the plaintiff should at any rate have been granted a decree against those defendants who filed solenamas in the lower Court. The facts as found at the conclusion of the judgment in respect of these solenamas were not disputed but it was urged that the provisions of Order XXIII, Rule 3 of the C.P.C. are mandatory and that the Court cannot refuse to record a compromise except where it is unlawful. We hold that in a case like the present where some only of the parties to the suit join in a petition of compromise the other parties are entitled to object to the compromise being recorded and if they show good cause the Court has discretion to refuse to grant a decree in terms of the Compromise. Oh the facts found in the present case we hold that that discretion was properly exercised. For the above reasons we dismiss this appeal with costs to those among to principal defendants Nos. 1 to 161 who have entered appearance in this appeal.

Ghose, J.

15. The facts on which the suit was brought are briefly these: The lands in dispute are within Mouza Patharkandy appertaining to Estate No. 85 called Mahomed Jalal of the District of Sylhet. The predecessors of the defendants, who were, Manipuris, occupied the lands sometime early in the last century, when they were covered by jungle, and brought them under cultivation. The owners of Estate No. 85 were the Chowdhuries of Chayabari. The Local Government Officials claimed the lands as appertaining to Ham lands falling outside the ambit of Estate No. 85. After protracted proceedings the Revenue Authorities released the lands as appertaining to the estate of the Chowdhuries. Some of the Chowdhuries then brought a Suit No. 9 of 1854 against the predecessors of defendants Nos. 1 to 160 and obtained a decree. Plaintiff alleges that under that decree the defendants became the tenants of the Chowdhuries and paid them rent. Disputes again arose at the time of the thak Survey when some of the Manipuris claimed the lands as Ham lands appertaining to Mouza Tatirband and not to Patharkandy. This dispute was decided in favour of the Chowdhuries by the Award dated the 29th August 1863 (Ex. 5). In 1870-71 the Raja of Manipur State purchased 1/8th share of the estate in execution of a decree against one of the Chowdhuries named Krishna Prasad, and he purchased another 1/56th share afterwards, by which the Raja became owner of 1/7th share in the estate. It is alleged that there was an amicable partition among the co-sharers of the estate and the Raja became solely entitled to the lands in Schedule II of the plaint by reason of the partition. The Government again took possession of the lands in 1877 as Ham but subsequently released it in 1882. The, Raja of Manipur continued in possession by realizing rents till 1831, when he rose in armed rebellion against the British Government, as the result of which the territories of the State of Manipur as well as all the properties of the Raja were confiscated and conferred upon a new Raja, selected by the Government, who was then a minor. During the minority of the Raja an Administrator of the State was appointed by the British Government who took possession of all the properties including the share in Estate No. 85 belonging to the former Raja. The Administrator sold the 1/7th shares in the Estate No. 85 with the sanction of the British Government to one Juarmal Tushniwal by a conveyance dated the 5th March 1896. Juramal again sold that share to the father of the plaintiff by a kobbala dated the 6th of June 1896. Plaintiff's father then applied for survey of the lands under the provisions of the Bengal Rent Act VIII of 1869, but that had to be abandoned on account of the resistance of the defendants who denied his right. Then in 1903 some lands were acquired under the Land Acquisition Act and plaintiff's father claimed a share of the compensation money. This _was resisted by some of the defendants in this case who alleged that they were the owners of the land. The learned Judge decided in favour of the plaintiff's father. Plaintiff's father brought 120 different suits in 1903 and 1901 against the defendants separately for possession of the disputed lands which were subsequently withdrawn with liberty to bring fresh suit. On the 16th September 1904 some of the defendants alleging that the lands are Ham lands of which they were the proprietors sold them to defendant No. 161. Plaintiff says that the act of his father in bringing those 120 suits determined the tenancy of the defendants and their predecessors and he, therefore, brings this suit in ejectment. It is sufficient to say that the defendants deny plaintiff's title and plead limitation, and they also deny that they were ever the tenants of the Chowdhuries of Chayabari or that they ever paid rent to them or to the Raja of Manipur, It is unnecessary to state other minor facts alleged. A large number of issues were raised in the Court below but the principal questions really fall into two groups': (1) whether plaintiff's title has been established and (2) whether the suit is barred by limitation.

16. The question of title was argued under several heads. It can hardly be disputed that the lands in Sell. I of the plaint appertain to State No. 85 and fall within, Mouza Patharkandy. Next, as the Subordinate Judge says, according to both parties the lands in suit are included within Schedule I of the plaint. His opinion that some of the dags cannot fall within the bonndaries of Schedule I is based upon his view of the map prepared by the Commissioner, without any other evidence or explanation from the Commissioner, and should not, therefore, be accepted. The disputed lands must, therefore, be held to be within Estate No. 85. The Civil Court Commissioner reports that all the lands in suit (i.e., Schedule II) are included in Schedule I of the plaint except part of dags Nos. 70, 125, 52, 8, 23 and almost the whole of Dag No. 71. The plaintiff cannot, therefore, claim those dags, and he does not do so before us. The Commissioner also reports that the lands of Schedule II with those exceptions are the lands included in the decree in Suit No. 9 of 1854; The Subordinate Judge has refused to accept this part of the report on insufficient grounds. No one appears to have taken any serious objection to the report of the Commissioner nor did the defendants examine him in Court and in the absence of any other evidence the Subordinate Judge ought to have accepted the report. If the lands in suit are the same as those in Suit No. 9 of 1854, the question of title would be res judicata if the parties were identical. The Subordinate Judge has found that the defendants in Suit No. 9 of 1854 were the predecessors of the principal defendants Nos. 1 to 160 in this case and I must accept that finding, which was not seriously controverted before us. The question is whether the plaintiff derived his interest from Krishna Prasad from whom he traces his title, and who was a plaintiff in Suit No. 9 of 1854. Krishna Prasad's name also appears as one of the owners of Estate No. 85 in the thak Statement (Ex. 18). The Raja of Manipur purchased the interest of Krishna Prasad which was said to be a 1/8th share of the Estate (Exs. 9, 9A 9B, 15). Then it is alleged that the Kaja of Manipur purchased another 1/56th sharemakinghis total of 1/7th. It is true that no document has been produced to prove the purchase of the 1/56th share, but in all proceedings down to the present suit, the share acquired by the Raja of Manipur has been asserted to be 1/7th in the presence of all the co-sharers in the estate without objection by any co-sharer. In the land acquisition case before the District Judge in 1903, plaintiff's father clamed 1/7th share in the estate which was admitted by the co-sharers: who also claimed a share of the compensation money, and the learned Judge found that plaintiff's father was entitled to that share. In this case also the co-sharers who gave evidence, (plaintiff's witness No. 5 and No. 32) admitted that the share of the plaintiff is 1/7th and there is no objection by any other co-snareri Under these circumstances the Subordinate Judge seems to be wrong in holding that plaintiff has not been able to prove that the Raja had acquired 1/7th share in the estate-It must, therefore, be held that plaintiff/has succeeded in showing that if he has got a. good title, his share is 1/7th. Defendants urged that plaintiff has not legally obtained the interest of the Raja of Manipur and the Subordinate Judge has accepted that contention. There is no doubt that the Raja of Manipur was deposed on account of rebellion and anew ruler of Manipur was selected. There can be no question that the Administrator took possession of these properties under the authority of Government with all other properties owned by the previous Raja of Manipur. Whether the act of the British Government be called annexation and regrant or it amounted to simply depriving the previous Raja of had property and conferring it on another, this was an act of State, the legality or validity, of which cannot be questioned in a Civil Court. The Administrator, therefore, gave a good title to Juarmal Tushniwal by his conveyance of 5th March 1896 and the plaintiff's father acquired a. good title by his purchase from Juarmal to 1/7th share of the estate.

17. The plaintiff, however, cannot succeed in this suit unless he proves that he is solely entitled to the lands by reason of a partition among the co-sharers. This I think he has failed to do. The earliest document in support of the partition is the petition by the co-sharers of 1887 to the Deputy Commissioner, a certified copy of which was admitted as Ex. 1 in this Court but which had been rejected by the Trial Courts. That petition, however, does not show any partition by metes and bounds nor does it contain the names of the tenants on the lands allotted to each co-sharer. This I think is not sufficient to prove that the lands in dispute fell to the share of the Raja pi Manipur by partition. Besides in the conveyance by the Administrator in favour of Juarmal there is no intention of any partition and an undivided 1/7th share was purported to be sold. It. is contended by the plaintiff that the judgment of the District Judge in the land acquisition case operates as res judicata on the question of partition in that case the plaintiff's father was 2nd party claimant and some co-sharers in Estate No 85 were 3rd party claimants and some of the defendants in this suit were 4th party claimants. The 2nd and 3rd party claimants agreed that there was a partition. The 4th party claimants claimed the compensation money on the allegation that the lands appertained to their Mouza Tatirband. This was found against them land in favour of the 2nd and 3rd parties. The 4th party were not in any way interested in the question of partition and no issue was raised as regards that as between those parties to the proceedings. The question cannot, therefore, be res judicata as against the defendants. Besides all the defendants were not parties in those proceedings. It is next urged by the plaintiff that in the present suit two of the co-sharers examined by the plaintiff prove partition and the others do not object and, therefore, this should be accepted. But the difficulty in the plaintiff's way is that in seeking to eject tenants (assuming for this purpose the existence of a tenancy) on the ground of forfeiture he must show that he was the sole landlord. There is no evidence that the tenants ever accepted the plaintiff as their sole landlord by attornment or that they were bound by the alleged partition, on which they became, the tenants of the plaintiff alone. These defendants were admittedly on the land from long before the alleged partition and they cannot be bound by any amicable partition as allaged without their consent. If they were not so bound the denial of the plaintiffs right cannot operate as a forfeiture of the tenancy nor can the plaintiff alone seek ejectment. This is, of course, assuming that the alleged denial of the title of the plaintiff, who was an assignee of the interest of one of the owners, could operate as a forfeiture, about which there may be difficulty. The plaintiff, therefore, in my judgment is not entitled to ejectment and on that ground his suit must fail.

18. The question of limitation must then be dealt with. This question as raised may be divided into two heads. First, whether defendants Nos. 1 to 160 were tenants on the land; and secondly, if so, whether the plaintiff's right to the land has been barred by limitation on account of the events which have taken place. With regard to the first point, it cannot be disputed that if those defendants were not tenants the suit is barred by limitation as against all the defendants. The plaintiff's case is that the relationship of landlord and tenant was established between the predecessor of the plaintiff and the predecessors of the defendants Nos. 1 to 160 by the decree in Shit No. 9 of 1854. The relation of landlord and tenant having been once established no limitation can commence to run against the plaintiff by reason of any alleged adverse possession by those defendant's, as the possession of the defendants could not have been adverse to the plaintiff. Adverse possession against the plaintiff only commenced from the date when the defendant No. 161, purported to purchase the proprietary interest in these lands on the 16th September 1904 and the suit being within twelve years from that date is not barred by limitation. The effect of the decree in Suit No. 9 of 1854 requires careful consideration. That suit was brought by some of the proprietors having 11-annas odd share in Mouza Patharkandi against the predecessors of defendants Nos. I to 160 in which the other co-sharers of Patharkandy were made defendants on the allegation that the co-sharer defendants were in collusion with the main defendants. In the plaint after stating, the-history of the disputes with regard to the property they asked for possession of a certain quantity of land as their share of the total area and for mesne profits. They valued the suit according to the actual value of the disputed lands and claimed Rs. 2,781 as mesne profits. The ordering portion of the decree runs thus: That the suit be decreed, awarding the plaintiffs Rs. 1,235-6-6 as mesne profits for the years 1258 B.S. to 1260 B.S. till the time they do N get possession. It is also ordered that as long as the defendants are ready and willing to pay the rents according to the legal rates of the village they should not be oust--ed from their right as jotedar, and that the defendants do pay to the plaintiffs the mesne profits due to them (the rest deals with costs). It seems to be reasonably clear upon a proper construction, that this decree did not constitute the relationship of landlord and tenant between the parties. The suit was for ejectment and jnesne profits. This was decreed but the condition as to ejectment was thalias long as the defendants are ready and willing to pay rent they should not be ejected. There is absolutely no evidence that the defendants expressed any willingness to pay rent to the plaintiffs or that they had ever paid rent. The plaintiff relies on the observations in the award in the thak proceedings (Ex. 5, dated 29th August 1863) and contends that his predecessors did collect rents from the defendants. The observations are these: 'Then they (the plaintiffs) instituted a suit in Court for possession and mesne profits and after obtaining decree got possession through the Court amin and realised rent from nearly all the tenants according to Act' X of 1859, which were all confirmed by the Appellate Court. The above boundaries all agree on local enquiry. The plaintiff's right and possession are, therefore, undoubtedly established.' The dispute which the thak Authorities had to decide was whether certain lands were to be included in the thak map of mouza Patharkandy or Tatirband, to which latter Mouza defendants allege the lands appertain. The dispute was raised between the owners of. the two mouzas and apparently two ancestors of some of the defendants claimed the lands as within Tatirband. This claim was negatived. But assuming that the observations in the decision of the Deputy Collector are evidence against the defendants, it is not shown that the plaintiff had recovered rents from the predecessors of these defendants. On the other hand it shows that the plaintiffs got possession through the Court amin or in other words executed the decree for ejectment as against the predecessors of the defendants. There is the further evidence on which the plaintiff relies that the Raja of Manipur had a catchari there and rents were realised on his behalf. But there is no definite evidence that rent was ever realised from the any of these defendants. Admittedly the plaintiff or his immediate predecessors had never collected rents. The evidence, therefore, does not establish the relationship of landlord and tenant between the parties. It is true that in this country the relationship of landlord and tenant is not constituted only by express contract. It was observed in the case of Nityanund Ghose v. Kissen Kishore W.R. (1864) Act X Rul. 82: 'Here it is a very usual thing for a man to squat on a piece of land, or to take into cultivation an unoccupied or waste piece of land. Tenancy in a great many Districts in Bengal, commences in this way and where it does so commence, it is presumed that the cultivator cultivates by the premission of the landlord, and is under obligation to his landlord to pay him a fair rent, when the latter may choose to demand it.' In the present case, however, neither of the parties averted a tenancy in Suit No. 9 of 1854 but the Court directed that the defendants should not be ejected if they were willing to pay rent. It is stated in para. 10 of the plaint in this suit that the Chowdhuries (i.e., the proprietors; got possession of the decretal lands through Court and in the next paragraph it is alleged that the defendants were allowed under the decree to retain possession as tenants and they and their friends and relations whom they brought on the lands of Schedule 1 of the plaint were holding the lands as tenants under, the proprietors and had been paying them rents. There is no documentary or any other reliable evidence as to the payment of rent by any of the defendants and in my judgment the effect of the decree is not what the plaintiff contends. If the, option given to the defendants in the decree was never exercised, and there is no evidence that the relationship of landlord and tenant was never established. If that is so the defendant's possession would be adverse all along and the plaintiff's suit is barred by limitation.

19. It is contended on behalf of the plaintiff that the defendants throughout claimed a raiyati interest in the lands and never the proprietary right. They alleged that they were tenants under Government and as Government released the lands in favour of the plaintiff's predecessors, plaintiff stands in the same relation to the defendants as the Government was according to them, and, therefore, the defendants cannot set up an adverse title as proprietors against the plaintiff. In other words it is contended that the defendants have at most acquired the limited interest of-riayats which they had set up and plaintiff is, therefore, entitled to the proprietary interest. But the defendants claimed they were proprietors directly under Government of the lands which were claimed as-Ham and it appears that the money due to Government for Ham lands is considered as revenue and not rent. This contention of the plaintiff does not appear to be sustainable. The plaintiff relied on the case of Jugdgo 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. 1 : (1923) M.W.N. 361 : 2 Pat. 38 : 27 C.W.N. 925 : 45 M.L.J. 460 (P.C.) and contended that the possession of the defendants could not be adverse to the plaintiff. It was, however, found in that case that there was no malikandari which the defendants claimed and as the mehal had all along been held in thika, if the thikaddr failed to collect the rent from any individual tenant it would not create adverse possession against the proprietor (see page 412). Mere non-payment of rent by a tenant would not create adverse possession even if the mehal had not been let out in thika, but the tenancy must first be established. That case, therefore, has no application to the present case.

20. This is sufficient to dispose of the appeal. But it is necessary to deal with another point which has been elaborately argued before us and about which there seems to be some divergence of judicial opinion. It is contended by the learned Vakil appearing for defendants Nos. 1 to 160 that even if those defendants were originally tenants of the plaintiff's predecessors, adverse possession would commence as against the landlord when the tenant set up an independent title in themselves to the knowledge of the landlord. In support of this proposition several cases have been, cited where this opinion seems to have been expressed, but which need not be referred to in detail as appears that none of them is a binding decision on the point, if analysed. It is, however, urged that the Judicial Committee has laid down the law as contended in the case of Ham Chunder Singh v. Madho Kumari 12 C. 484 : 12 A. 188 : 9 Ind. Jur. 474 : 4 Sar. P.C.J. 666 : 16 Ind. Dec. (N.S.) 329 (P.C.). In that case it does not appear that any relationship of landlord and tenant was found to have existed between the parties when the defendant set up an adverse claim. It was held in a previous suit brought by the plaintiff against the predecessor of the defendant for compensation money deposited in Court that the defendant had no valid right to the land and that he was allowed to hold the subordinate tenure by the mere sufferance pf the superior holder. This decision was Held, to be binding on the question of title between the parties in the subsequent suit for ejectment. When the defendant pleaded advers possession in the subsequent suit their Lordships were of opinion that no adverse possession was proved to have existed until the institution of the previous suit when the claims of both parties were undoubtedly adverse. It does not seem to me that that case lays down the rule that if a tenant during the continuance of the tenancy sets up a claim adverse to the landlord to his knowledge the Statute of Limitation would begin to run against the landlord from that time on the question of title. Reliance is next placed on the observations in Giris Chandra Gangopadhaya v. Krishna De Nag 75 Ind. Cas. 325 : 38 C.L.J. 266 at p. 271 : (1921) A.I.R. (C.) 168 where at page 271 Page of 38 C.L.J.--[Ed.] this passage occurs: '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.' With the gretest respect, I find myself unable to accept that proposition. In my judgment the true view is that the tenant himself cannot during the term by any act or declaration of his disseise the landlord. He may by repudiating the landlord's title during the term, forfeit the term, but the landlord v is not bound to take advantage of the forfeiture, and his estate cannot be affected. In my opinion the principle that a tenant cannot cause the Statute of Limitation to run against his landlord by giving notice to him of an adverse title during the term, is illustrated by the decisions of the Judicial Committee in Beni Parshad Koeri v. Dudhnath Roy 26 I.A. 216 : 27 C. 156 : 4 C.W.N. 274 : 7 Sar. P.C.J. 580 : 14 Ind. Dec. (N.S.) 103. (P.C.) and in Raja Muhammad Mumtaz Ali Khan v. Mohan Singh 74 Ind. Cas. 476 : 50 I.A. 202 at pp. 208, 209 : (1923) A.I.R. (P.C.) 118 : 21 A.L.J. 757 : 45 A. 419 : 26 O.C. 231 : 45 M.L.J. 623 : 9 O. & A.L.R. 901 : 10 O.L.J. 383 : 19 L.W. 283 : 39 C.L.J. 295 : 28 C.W.N. 840 : 33 M.L.T. 231 (P.C.). It is argued that those cases do not apply as there the tenants claimed only an interest higher than what they were entitled to and did not claim title, in themselves. But to my mind that does not make any difference in principle and I think that the Statute of Limitation runs against the landlord only when the relationship of landlord and tenant has determined and the landlord is entitled to take possession.

21. It is next contended, by the defendants that limitation should commence to run from December 1896 when the defendants denied the relationship of landlord and tenant and so incurred a forfeiture. It must be borne in mind that no rule of forfeiture is enacted by Bengal Act VIII of 1869 by which the tenancy in the present case is governed. In the absence of any such provisions the rule of English Law has been applied to such cases: Nizamuddin v. Mamtazuddin 28 C. 135 : 5 C.W.N. 263. This case has been referred to with approval by the Privy Council the case of Maharaja of Jeypore v. Rukmini Paltamahadevi 50 Ind. Cas. 631 : 46 I.A. 109 : 36 M.L.J. 543 : 7 A.L.J. 552 : 29 C.L.J. 528 : 21 Bom. L.R. 655 : (1919) M.W.N. 271 : 23 C.W.N. 889 : 26 M.L.T. 16 : 49 M. 589 : 10 L.W. 381 (P.C.), where their. Lordships observe (at page 118) that the Law of England is embodied in Section Ill of the Transfer of Property Act. Assuming that the tenants renounced their character as such in 1896 and that worked as a forfeiture of the tenancy, the question is when the tenancy determined. The answer to this in my judgment is, when the plaintiff's father brought the previous 120 suits in ejectment in 1903 and 1901, which act showed his intention to determine the leases. That a lease is not determined until the landlord does some act showing his intention to determine the lease is supported by Naurang Singh v. Janardan Kishore Lal Singh 41 Ind. Cas. 952 : 45 C. 469 : 22 C.W.N. 312 : 27 C.L.J. 277 and Mod Lai Pal Chowdhury v. Chandra Coomar Sen 60 Ind. Cas. 312 : 24 C.W.N. 1, and as it is the privilege of the landlord either to take advantage of a forfeiture or not it cannot be held that adverse possession of the tenants commences against the landlord from the date of renouncing the tenancy. The suit having been brought within 12 years from 1903 would not, therefore, be barred. There is, however, one aspect of the question of limitation which I think we need not consider in detail. It is whether under Article 143 of the Limitation Act plaintiff's suit for possession should fail as having been brought more than 12 years after the forfeiture, was incurred. It seems that the suit for possession would be barred under that Article. But the plaintiff says that he does not want to eject the tenant defendants and would be satisfied if his title is established as against defendant No. 161 and a declaration is made that he is entitled to rent from defendants Nos. 1 to 160. If it had been found that the defendants Nos. 1 to 160 were tenants, of the plaintiff the question whether such a decree might have been made would have to be considered. The appeal, however, fails on other grounds.

22. There remains one other point to dispose of and that is whether the appeal abated in its entirety as some of the defendants had died and. their representatives were not brought on the record in time and also because the appeal was given up against some other defendants. As the defendants hold distinct plots of land which have been separately described in the plaint I do not think that the whole appeal should abate on those grounds but the claim with regard to some plots must be dismissed. -The appeal against the heirs of defendants Nos. 73, 115 and 119 was given up in June 1920. Defendants Nos. 54, 82, 116 and 133 had died, the appeal against them abated. Their heirs were brought on the record by an ex parte order on application made by appellant on the 18th December 1922. The abatement was not set aside. The appeal, therefore, against them must fail. On the 4th July 1922 the appeal was dismissed against all the defendants Nos. 1 to 160 by another Division Bench. On review the order of 4th July 1922 was set aside by an order dated the 27th July 1923 except with regard to some of the defendants on whom the notices of the application 'for review were not served. Those defendants are 17 (ka), 27, 37, 44, 48, 76 and 121. The appeal against them also must stand dismissed on that ground. For the above reasons the appeal as well as the suit must stand dismissed with regard to plots Nos. 56, 92, 118, 45, 64, 112, 19, 28, 36, 41, 60, 98 on this ground alone.

23. I agree that the appeal fails and must be dismissed with costs.

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