1. This is an appeal by the plaintiffs against the decision of the Court below reversing the decision of the Court of first instance. It arises out of a suit for the recovery of plot No. 1018 of Khata No. 10 in village Lakshmipur. The suit comes from Dhanbad in the district of Manbhum where the tenancy law in force is the Chota Nagpur Tenancy Act. The land in suit belonged to one Gorachand, father of plaintiff No. 1 and grandfather of plain till No. 2, and was recorded in his name. The plaintiffs alleged that in May 1944, while Gorachand was ill, the defendants took possession of the plot and constructed a house on it. As framed, therefore, the suit was one to eject a trespasser who was alleged to have trespassed the plaintiffs' land. On the plaint the suit was governed by Article 142 of the Limitation Act and must have been dismissed as the plaintiffs failed to prove possession within twelve years of its institution. In fact, it has been dismissed by the appellate Court, and the plaintiffs have appealed against that decision.

2. The case has become rather complicated, however, because the defendants were not satisfied with the plaintiffs' case that they had been in possession within twelve years of the institution of suit. They pleaded that they were under-raiyats of the plot alleging that Gorachand had settled the land with defendant No. 1 and with Chunaram father of defendants 2 and 4 in consideration of a selami of Rs. 18 in 1335 B.S, that is to say, about 1928.

3. The Court of first instance rejected this defence holding that the defendants had not proved the alleged settlement or that they had been in possession under it. The first Court held that the defendants were mere tenants-at-will and that the plaintiffs were entitled to eject without notice.

4. In appeal, the appellate Court had taken the view that since the defendants claimed to have entered into possession under a settlement from Gorachand, they had set up a plea of adverse possession, and that, although under the law prevailing in Chota Nagpur, it was beyond the power of Gorachand to make a settlement of the nature alleged by the defendants, the latter must be regarded as having obtained possession in 1928 and that possession must be regarded as adverse possession to the plaintiffs from its beginning, and, therefore, that the defendants had acquired a title to the land by adverse possession. Against that decision the plaintiffs have now appealed.

5. Before dealing with the main point in the case, I propose to consider the contention of Mr. Mukherji for the respondents that this suit is barred by Section 139A of the Chota Nagpur Tenancy Act. That section prohibits any Court from entertaining any suit concerning any matter in respect of which an application is recognizable by the Deputy Commissioner under S. 139. S. 139 makes the following applications cognizable by the Deputy Commissioner and not in any other Court, namely, (a) all applications under the Act to eject a tenant of agricultural land or to cancel any lease of agricultural land, and (b) all applications in respect of which jurisdiction is conferred by the Act on the Deputy Commissioner. The first of these two applications to which I have referred falls within sub-section (4) of S. 139. But the present is neither an application to eject a tenant or to cancel a lease, the plaintiffs' allegation being that the defendants are not tenants, but trespassers. The second class of applications is governed by Sub-s. (8) of S. 139, and it is necessary to consider whether in the present suit an application would have laid to the Deputy Commissioner under the Act for the purpose of ejecting the defendants. Mr. Mukherji refers to Sub-s. (5) of S. 46 of the Act as it stood before it was amended, after the institution of the present suit, in 1947. Sub-s. (5) provides that if a raiyat transfers his holding or any portion thereof in contravention of the provisions of S. 46, the Deputy Commissioner may, of his own motion or on the application of the raiyat, eject the transferee and place the raiyat in possession of the holding within twelve years from the date of the transfer. Mr. Mukherji contends that under Sub-s. (5) an application could have been maintained to the Deputy Commissioner for restoration of possession of their land, and, therefore, S. 139A bars the Civil Court in entertaining the present suit. The application of Sub-s. (5) of S. 46, however, depends upon certain facts; for instance, under Sub-section (4)(a) certain classes of raiyats may transfer their holdings to certain classes of persons. A litigant who wishes to rely on S. 139A which is a bar to the jurisdiction of the Civil Court, must first show that his application comes under the provisions of S. 46, and, for this purpose, must allege facts which make the transfer invalid under that Section. For that purpose he will have to show that either the transfer is not of the class to which Sub-s. (4)(a) relates or that the transferee is not of the class to which a transfer is permitted by the section. In the present instance the plaintiffs did not allege facts necessary to attract the provisions of that section.

6. The main controversy in this litigation, however, is with regard to limitation. The appellate Court has found, and there can be no controversy about it, that a settlement or transfer by a raiyat of land under the provisions of the Chota Nagpur Tenancy Act for a period which may exceed five years is altogether void ‘ab initio’. ‘Where a raiyat purports to transfer his holding or portion of it outright, then the possession of the transferee can be regarded as adverse from the date on which it takes place, but when, as in the present case, the transfer is by way of a lease the question arises, what is the transferee prescribing for. It is certainly not for the raiyati interest, out may be for an interest subordinate to the raiyati interest. In the present case what the transferee was prescribing, for was the interest of an under-raiyat, and, moreover, an interest of permanent nature. In the case of ‘Bhukhan Mian v. Radhika Kumari Debi’, AIR (25) 1938 Pat 479 a Division Bench of this Court held that a person cannot prescribe for a limited interest such as a tenancy, as a tenancy is based on contract, and on principle it is difficult to hold that a contract can be brought into existence by prescription. The further difficulty in this case is that in a case of the present nature there is a statutory bar to a contract or lease settlement of the nature on which the defendants rely. The question whether a transferee of lands can acquire by prescription a title to land the alienation of which is prohibited by statute was considered by a Full Bench of the Bombay High Court in ‘Radhabai v. Anantrav’, 9 Bom 198 which decided that, in the absence of fraud adverse possession of twelve years would confer a title on the transferee. This matter was later on considered by the Privy Council in ‘Madhavrao Waman v. Raghunath Venkatesh’, 50 Ind App 255 which had the occasion to consider the decision of the Bombay High Court, and although their Lordships did not expressly overrule that decision still they expressed themselves, as saying that it is somewhat difficult to see how a stranger can acquire title by adverse possession, of twelve years of lands the alienation of which is in the interest of the State prohibited. Furthermore, in ‘Nainapillai Marakayar v. Ramanathan Chettiar’, AIR (11) 1924 P.C 65 at p. 67 their Lordships stated, with respect to the acquisition of the right of occupying land permanently in India as a tenant, that such right can be obtained only by custom or by a grant from the owner if the latter has power to grant such a right, or under an Act of the legislature. In the present instance no custom is pleaded and there is no Act of the legislature conferring permanent rights on the defendants and the settlement on which they rely is prohibited by the statute. It was, therefore, in my opinion, not open to the Court of appeal below to hold that the defendants had acquired a right of tenancy by prescription.

7. If this appeal had to be decided on the allegations in the plaint, I would have no difficulty in dismissing it on the ground that the appellants, having framed their suit as a simple suit for ejectment, had failed to prove possession of the disputed land within twelve years of the institution of the suit. But Mr. Mukherji on behalf of the respondents conceded that, in view of the course the litigation took at the trial, the question arising-should be decided not on the allegations in the plaint but on the findings. The material findings are that the plaintiffs' predecessor, Gorachand, put the defendants in possession as settlees and that the-plaintiffs have failed to prove their possession with in twelve years of the institution of the suit. In view of the defence taken that the defendants had been put in possession by the plaintiffs and were tenants of the plaintiffs and had been paying and are liable to pay rent to them, it seems to me that the onus which lay on the plaintiffs of proving possession on their part had been discharged, for the defendants must be taken as admitting that their possession was at least permissive possession. This amounts to saying that the plaintiffs were in their possession through them. In ‘Bhukhan Mian v. Radhika Kumari Debi’, AIR (25) 1938 Pat 479 Wort, A.C.J refused to regard as a trespasser a person whom the plaintiff had put in possession of the disputed land. In that case the plaintiff in a suit for redemption alleged that he had deposited the money due under the mortgage. The defendant denied that he was a mortgagee and claimed to be a tenant under the plaintiff. The mortgage deed being unregistered it was inadmissible in evidence. It was in evidence that the defendant had been paying a sum of Rs. 8 per annum to the plaintiff. But as the document was inadmissible, it was not possible to determine the nature of this payment. Wort, A.C.J observed that

“the plaintiff here seeks to recover possession. He cannot prove his contract as the documents are not registered; and, although strictly speaking the mortgages may not be void but at the same time they are unprovable. Therefore, it may very well be that the defendant could be treated as a trespasser from the time of the so-called mortgagee of 1921. But in this case, having regard to the fact which I have mentioned, namely that he had been paying Rs. 8 per annum and which is being accepted by the plaintiff, it is impossible to hold that the defendant is a trespasser. The payment is evidence at least of the fact that the possession of the defendant by the plaintiff is permissive.”

8. So, as I have already indicated the line of defence taken in this case also is that their possession is at least permissive possession.

9. It remains to refer to the cases cited by Mr. Mukherji on behalf of the defendants-respondents. The first of these is ‘Gobardhan Gorain v. Sibakali’, 11 Pat 456. This was a suit by a settled raiyat in Chota Nagpur for ejectment of the defendant from homestead land in his possession. The defendant was in possession under a lease which offended against the provisions of Section 46 of the Chota Nagpur Tenancy Act. Nevertheless, there is an observation in the judgment that, although the lease is invalid, the plaintiff who brought the defendants upon the land and took nazrana and allowed them to build the house and to remain in possession for some 16 years could not be permitted to take advantage of his own wrong and to eject the defendants. Mr. Mukherji cited this case as an instance where this Court had not applied the rule that there can be no estoppel against the statute. The property in dispute in that case was homestead land and the real point for consideration was Section 78 of the Chota Nagpur Tenancy Act. The defendant was a settled raiyat with other lands in the village, and, as such, could not be ejected from their agricultural land by the landlord. Section 78 of the Chota Nagpur Tenancy Act, 1908, provides that when a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provision of this Act applicable to land held by a raiyat. The homestead in that case was held otherwise than as part of the raiyati holding. The decision, therefore, turned on the application of S. 78 and not on the rule that there can be no estoppel against the statute. The second case is that of ‘Abdul Jabbar v. Gulab Khan’, 14 Pat LT 294 which is a decision of Macpherson, J. sitting single. That learned Judge held that a mortgagee in possession under a mortgage by a raiyat of a holding in Chota Nagpur which contravenes the provisions of S. 46 of the Act begins to prescribe from the date of the mortgage and if he holds adverse possession as such for the statutory period, the raiyat can only recover possession by redeeming it. The learned Judge also said that while a mortgagee will ordinarily prescribe as such, he is not debarred from prescribing in another capacity, as for instance, on a claim of title as raiyat of the holding, if the circumstances show that the adverse possession which he thereafter asserted was as the raiyat. In neither of these two cases is there any reference to the decision of the Privy Council to which I have referred above.

10. In my view, in view of the allegations in the written statement, the plaintiffs-appellants have proved their possession within twelve years of the institution of the suit and the suit should, therefore, have been decreed. The judgment and the decree of the appellate Court, are, therefore, set aside and those of the Court of first instance are restored. In view of the manner in which the plaintiffs framed their claim, I consider that they should bear their own costs throughout this litigation.

D.R.R

11. Appeal allowed.