Kanhaiya Singh, J.:— This appeal by the defendants arises out of a suit in ejectment. This action was brought by the plaintiffs-respondents for confirmation of their possession of a tank called Dighi Goria bearing survey plot No. 58 in village Kanduthya after establishment of their title thereto and for recovery of Rs. 180 on account of the price of 3 maunds of fish alleged to have been illegally caught and appropriated by the defendants appellants. Raja Shyam Sundar Singh, Zamindar of Pandra, was the proprietor and in khas possession of this tank.

2. The plaintiffs' case was that in the year 1338 B.S (corresponding to 1931) the said Raja made a permanent settlement of the tank with them and pro forma defendants (respondents) at an annual rental of Rs. 4/2/- after accepting Rs. 175/- as nazrana and put them in possession of the same. The Raja granted to them a sada hukumnama in proof of the settlement. The plaintiffs asserted that they and the pro forma defendants were in continuous possession of the tank since after the settlement by catching and rearing fish and in various other ways. On 28-3-1947, the appellants forcibly caught fish in the said tank occasioning thereby a loss of Rs. 180/- to them, which actions of theirs cast a cloud over their title. Hence the suit.

3. The appellants resisted the suit substantially on the ground that they had taken permanent settlement of the said tank from the Raja of Pandra in 1336 B.S (corresponding to 1929) by virtue of an unregistered hukumnama on payment of Rs. 225/- as nazrana, and that since then they were in uninterrupted possession of the tank. They denied the title and possession of the plaintiffs.

4. The learned Munsif held that the respective leases of the plaintiffs and the defendants did not confer on them any valid title to the land, inasmuch as the leases having been granted for non-agricultural purposes were legally invalid for want of registration. He held further that the plaintiffs were in possession until 28-3-1947, and the appellants assumed possession by dispossessing the plaintiffs on that date and were in possession since then.

5. Since neither of the parties were clothed with legal title, he held that both of them were trespassers and that as, in his opinion, one trespasser was not entitled in law to maintain a suit for ejectment of another trespasser, the suit was misconceived, and the plaintiffs were not entitled to recover possession. On the same reasoning he also disallowed their claim for damages for the fish appropriated by the appellants.

6. The learned Additional Judge on appeal eon-firmed the finding of the learned Munsiff that both the appellants and the respondents were trespassers having acquired no valid title by unregistered leases. He also held, in agreement with the learned Munsif, that the plaintiffs were in possession of the tank until 28-3-1947, and that on that date the appellants took possession of the tank by forcibly dispossessing them. He, however, rejected the contention of the Munsif that one trespasser cannot maintain a suit for ejectment of another trespasser and held that since the plaintiffs were in possession of the tank until 28-3-1947, they were entitled to recover possession of the land on the strength of their previous possession from any person other than the one having a legal and superior title to the same.

7. Since the appellants also were without right and were in the nature of trespassers, they could not resist legally the plaintiffs' action for possession. He accordingly gave the plaintiffs a decree for possession. He, however, disallowed the claim for the price of the fish on the ground that there was no evidence as to the quantity of fish caught. The contesting defendants have come up in second appeal.

8. It is admitted that the settlement of the Dighi Goria tank with both the plaintiff's and the defendants was for non-agricultural purposes, and by the hukumnama the landlord purported to create a permanent interest therein. By Section 107 of the Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

9. Admittedly, these leases were unregistered and consequently they were void and legally ineffective to convey any title to or create any right in the lessees in respect of the tank. Thus, at the inception both parties were without any title to the tank. Mr. R.S Chatterji appearing for the appellants sought to make a distinction between a rank trespasser & trespasser having some ostensible claim to the land and contended that since the possession of the appellants was backed by the deed of lease (hukumnama) granted to them by the owner of the land, their claim to the land was superior and, consequently, they were not liable to be ejected by the plaintiffs who were mere trespassers.

10. This argument overlooks the previous possession of the plaintiffs for a considerable period, far in excess of the statutory limit. According to the concurrent findings of the Courts below, the plaintiffs were in continuous and uninterrupted enjoyment of the tank from 1931 to 28-3-1947, that is to say, for nearly 16 years. Long possession for the statutory period enjoyed openly and continuously in assertion of independent right is itself sufficient to confer an absolute right on the possessor in the land possessed.

11. An instrument of transfer, though legally void for certain technical reasons, is effective to convey a right, limited or absolute, according as limited or full right is sought to be created by the instrument in question, provided possession has been taken in pursurance of and under the said instrument and retained for the statutory period, because possession under a void transfer is adverse to the true owner.

12. The law is now well settled and where a transferee under a lease or sale has been in possession for upwards of twelve years of a property under a lease or sale which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the lessee or the vendee, as the case may be, is adverse to the true owner from the moment of the attempted sale or lease. Vide Ram Charan Das v. Naurangi Lal’, 1933 P.C 75 (AIR V 20) (A), ‘Hem Chand v. Pearey Lal’, 1942 P.C 64 (AIR V 29) (B) and Markanda Mahapatra v. Kameshwar Rao’, 1949 Pat 197 (AIR V 36) (C).

13. It will appear that in this case the possession of the plaintiffs began as a result of the lease in their favour by the owner of the tank and continued without interruption for upwards of twelve years. So, on the date of possession of the disputed land by the defendants, that is, on 28-3-1947, the plaintiffs had acquired an indefeasible interest in the land, with the result that by efflux of time they had lost the character of trespasser and had acquired a permanent tenancy right in the land.

14. I say ‘permanent’ because that was the right Which the unregistered lease purported to create in them, and which the plaintiffs themselves declared to possess. Possession per se is not decisive of the nature and extent of interest a possessor acquires by prescription; it is really the animus possidendi which accompanies the possession Whether a limited right or a full right is acquired fay virtue of possession in excess of the statutory limit of twelve years depends upon the facts of each case. The answer in all cases hinges upon the animus possidendi with which the possession is held, the relevant query being what was the nature of the right which the possessor intended to prescribe for by virtue of his adverse possession against the real owner. The possessor cannot acquire a right higher than what he was actually prescribing for. In the instant case, the plaintiffs rested their case on an unregistered hukumnama and did not claim a right other than the right sought to be conferred upon them by the lease.

15. Now, when the lease purported to create a permanent tenancy in the land, they cannot claim an interest higher than or different from that which they would have got had the transaction of the lease been legally valid or operative. In the circumstances, the plaintiffs must be deemed to have acquired a permanent tenancy right in the land possessed by them for the statutory period. See ‘Dukhu Maltha v. Nand Lal’, 1952 Pat 293 (AIR V39) (D).

16. When the instrument of the transfer in favour of the plaintiffs was void, the owner of the tank was entitled to treat the transaction as a nullity and resume khas possession of the land. He, however, took no action to eject the plaintiffs but; allowed them to enter into possession of the land, leased to them and to remain in possession for over twelve years. As observed by the Privy Council in the case of 1942 PC 64 (AIR V29) (B), if the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession.

17. Hence, the title of the owner to the tank was extinguished to the extent prescribed by the plaintiffs, and the owner or any person claiming through him cannot legally eject them, or successfully resist a suit by them for possession in case of their dispossession. Assuming that the deed of lease in favour of the appellants was genuine, they along with the owner did not attempt to obtain possession thereof.

18. Now, the defendants cannot resist the suit of the plaintiffs for possession, because it is founded not upon the void lease but on the right conveyed to them under the lease perfected by possession for the statutory period. That being so, the plaintiffs are no longer trespassers but are rightful possessors of the land, and the distinction which Mr. R.S Chatterji seeks to make no longer applies. This contention, therefore, must be overruled.

19. Assuming that the plaintiffs were trespassers in the same way as the defendants, there is a consensus of judicial opinion that a trespasser in possession can maintain a suit for recovery of possession if dispossessed by another trespasser. Possession is prima facie a proof of title, and a previous possession, though without title, will constitute a good foundation for a suit in ejectment against a person who is equally a trespasser and has no better title to the disputed property. In the case of ‘Bodha Ganderi v. Ashloke Singh’, 1927 Pat 1 (AIR V14) (E), Dawson-Miller C.J observed as follows:

“As between two persons who are unable to make out a valid title one is in possession and has been in possession for several years. He is suddenly dispossessed by another who had no better title than the person whom he dispossesses, in fact he has no title at all. In the circumstances it seems to me that the plaintiff is entitled to be restored to possession of this tree.

20. The defendants had no right whatever to dispossess him and, if they do, whatever may be his title he clearly can seek the aid of the Court to be put back in such possession as he had, before being dispossessed by those who had no title”. See also ‘Akal Ahir v. Baijnath Das’, 1924 Pat 709 (AIR V 11) (P). ‘Lilku Mahton v. Amar Mahton’, 1936 Pat 602 (AIR V23) (G), ‘Shivsaran v. Sukhdeo Rai’, 1937 Pat 418 (AIR V24) (H), and ‘Subodh Gopal v. Province of Bihar’, 1950 Pat 222 (AIR V 37) (I). From this point of view also, the defendants cannot successfully resist the plaintiffs' suit for possession as they have not established a better title to the disputed tank.

21. Mr. Chatterji has next contended that although the deed of lease in favour of the appellants was void and did not pass any valid title, it would nevertheless operate as an agreement of lease, and since they had in part performance of the contract paid the nazrana and taken possession of the property in suit, they have acquired a right in the land which by virtue of Section 53-A of the Transfer of Property Act, had become unassailable by the lessor or any person claiming through him, in the present case the plaintiffs respondents, and therefore they are entitled in law to maintain their possession against the lessor or his assignees or legal representatives who are now debarred from enforcing any right in respect of the suit property. Section 53-A of the Transfer of Property Act, reads as follows:

“Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof”.

“Contract contemplated by S. 53-A is a contract which is enforceable at law. In other words, the contract in part performance of which possession has been taken is a contract in respect of which right to sue for specific performance of the same still subsisted. When the contract has become incapable of specific performance by efflux of time, possession taken thereafter cannot be said to be possession in part performance of the contract.

22. If a person obtains a lease of land which under the law is void and sleeps over his right and does not take possession thereafter and remains out of possession till the right to sue for specific performance of the contract is barred by limitation, he cannot, by dispossessing a person previously in possession though without right, invoke to his aid the equitable doctrine of part performance embodied in Section 53-A of the Transfer of Property Act, so as to override the express provision of the Limitation Act, the reason being that after his remedy is barred he is no better than a mere trespasser.

23. According to the appellants, their lease was executed sometime in 1929, and according to the findings of the Courts below, they did not get possession in pursuance of this contract and remained out of possession until 28-3-1947. By Article 113 of the 1st Sch to the Limit. Act, a suit for specific performance of a contract must be instituted within three years of the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. In order to have the protection of S. 53-A, possession must be taken in part performance of the contract before the enforcement of the contract is barred by time.

24. Apart from this, as held above, the plaintiffs had acquired a perfected title by prescription, and the defendants had no semblance of title at all because they had no possession before and their right to enforce the contract was barred. They were, therefore, mere trespassers and could not successfully maintain their possession against the plaintiffs who had in the meantime acquired a good title.

25. Assuming that S. 53-A applied to the present case, the posession of the appellants was good and effective only against the “transferor or any person claiming under him”. The expression “any person claiming under him” means only the person who has derived any interest from or through the transfer, namely, assignee or legal representative of the transferor. In this case, the plaintiffs have not acquired any interest in the land from or through the transferor, but rather in spite of him. They remained in possession without title adversely to the lessor until their title became perfect.

26. In such circumstances, they cannot be said to be persons claiming under the lessor. If a person, on obtaining a transfer by sale, lease or otherwise, by means of an instrument which due to the omission to comply with the formalities prescribed by law therefor, was void and did not, therefore, pass any legal title, did not take possession of the property in pursuance of the said agreement, and in the meantime a third person had acquired a perfected title by prescription, the vendee or lessee, as the case may be, cannot, in a suit for possession by the said person in consequence of his forcible dispossession by him, invoke to his aid the provisions of section 53A and use his possession supported by the invalid deed of transfer, as a shield against his ejectment. In such a case, S. 53-A does not apply. This contention of Mr. Chatterji, therefore, is without substance.

27. The settlement of the tank was made with the plaintiffs and their co-sharers who are pro forma defendants in this case, the share of the plaintiffs being one-third and that of the pro forma defendants two-thirds in the tank. On this fact, an argument was founded by Mr. Chatterji that on the strength of their possession the plaintiffs as co-sharers in the disputed tank could not get a decree for possession of the entire land, but at best they could get a decree for joint possession of the tank with the trespassers to the extent of their share.

28. Reliance was placed upon the case of ‘Joy Gopal Sinha v. Probodh Chandra Bhattacharjee’, 1935 Cal 646 (AIR V22) (J). That case is clearly distinguishable in two respects, first, unlike the present suit the co-sharers were not impleaded as defendants in that case, and, secondly, the possession of the trespasser was with the consent of the other co-sharers. Nasim Ali, J. delivering the judgment of the Court has made this significant observation:

“If two persons are joint owners and a third person holds the land with the express sanction and acquiescence of one of the co-sharers, he cannot be ejected from the whole of the land by, the other cosharer”.

29. In the present case, the appellants asserted possession in their own right on the strength of the lease from the owner and not with the leave and licence of the co-sharers of the plaintiffs. In fact the appellants have repudiated the title of both the plaintiffs and their co-sharers. Further, the view taken in this Court is entirely different.

30. In the case of ‘Sambhu Gosain v. Piyari Mian’, 1941 Pat 351 (AIR V 28) (K), Agarwala, J., as he then was, sitting singly, held, after considering several cases on the point, that one of the co-owners was entitled to maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action., With great respect, I agree with and adopt the reasonings of Agarwala, J.

31. When a common land of several co-sharers is possessed by any person without right and without authority, any one of the co-sharers can maintain an action in ejectment against the trespasser for the simple reason that as a joint owner his right extends to every inch of the joint land and cannot be distinguished from the right of others. All these considerations, however, do not arise in the instant case. The plaintiffs clearly stated in the plaint that they and the pro forma defendants were in actual khas possession of the disputed tank and the relief they sought was on behalf of both themselves and the pro forma defendants.

32. In essence and substance the suit was on behalf of all the co-sharers, and this is the correct frame for a suit by a co-sharer for a relief in respect of a right in which other co-sharers are also interested, when the latter do not join as plaintiffs. This contention of Mr. Chatterji on merits as also in principle is without substance. In the result, the appeal is dismissed with costs.

Rai, J.:— I agree.

D.H.Z

33. Appeal dismissed.