Bijayesh Mukhrji.J.:-

(1) This appeal by the first defendant sm. Nagendra bala devi chowdhuranil, since substituted by the administrator general, west bengal, from an appellate judgment and decree of affirmance, is put in two ways.

(2) First: here is a mokari mourasi tenancy as respects the disputed land, and, therefore, protected, under section 37, subsection 1, clause (b) , subclause (ii) , of the bengal land - revenue sales act 11 of 1859, as substituted by the west bengal amendment act 7 of 1950. That being so, the plaintiff subodh gopal basu, now first respondent, is disentitled to a decree, the two courts below have granted him, for joint possession of the disputed land, by virtue of his purchase in a revenuesale on january 6, 1936. Joint possession, because he is a fractional owner of the land, owned, by the proprietors of other touzis as well (paragraph 5 infra.)

(3) Second : subodh gopal's suit for declaration of title and joint possession, instituted on may 1, 1951, in the court of the subordinate judge, is barred by time, he having never been in possession of the land in controversy within twelve years from january 8, 1936 - the date of his purchase in the revenue sale.

(4) On no other point have we been addressed. On the contrary, it has been submitted that if the appeal succeeds on the contention resting on a tenancy, the question of limitation need not be gone into.

(5) First, to the plea of tenancy. That the land in dispute appertains to touzi no. 6 of the 24. Parganas collectorate - a touzi the whole of which has been auction - purchased by subodh gopal in a revenue - sale on january 6, 1988 - is now concluded by the concurrent finding of fact of the two courts below, and has not, therefore, been challenged before us. More, the disputed land is situate in mouza chetla within the jurisdiction of alipore police - station, and chetla appertains to touzis numbering 1 to 6 and 8 to 16. By virtue of his purchase of the whole of touzi no. 6 in the revenue - sale, subodh gopal gets 2 annas 13 gandas 1 kara and 1 kranti undivided share of the land in mouza chetla, the remain in undivided land appertaining to touzis 1 - 5 and 8 - 16,

(6) Upon these facts, undisputed and indisputable, the question of tenancy needs looking into. One searches the evidence in vain to find out anything on which it can be said that the owner of touzi no. 6 had at any time settled the land with nagendra bala or any one of her predecessors as a tenant. She calls no witness, but produces three sale - deeds :

(i) one of january 1913, exhibit a/2, by which sm. Nistarini and her two sons conveyed to sitanath basu the mokarari mourasi interest in the land in suit, carved out of a bigger area carrying a rental of rs. 5 - 10 annas 13 gandas a year under the zemindars tarakumar roy chowdhuri and others. (ii) another of september 1914 exhibit a/l, by which sitanath basu sold to bankim bihari bhattacharjya what he had purchased by the conveyance just stated, exhibit a/2, and (iii) still another of october 1915, exhibit a, by which bankim bihari bhattacharjya sold to nagendra bala, the original appellant, what he had purchased from sitanath basu in september 1914 (exhibit a) specifying - a. It is an out - and - out sale - deed of mokarari mourasi land, and b. It bears a rental of 5 annas 3 gandas 2 karas and 2 krantis under the zamindars tarakumar roy (no chowdhuri) and others.

(7) These three sale - deeds the first court has, and the appeal court has not, taken into consideration. And that is made a point of. But that appears to be a pointless point. Because none of these sale - deeds show that the owner of touzi no. 6, subodh gopal's immediate predecessor, the former proprietor durgaprosad khaitan, a name the certificate uf revenue - sale, exhibit 1, reveals, or any one of his predecessors had settled the land with nagendra bala or any one of her predecessors. A tenancy under tarakumar (no matter what his surname is roy or roy chowdhuri) and others, the sale - deeds no doubt recite. Nagendrabala has made no case, in her written statement, of acquisition of a tenancy, a limited right, by adverse possession, as subodh gopal's another adversary did not either, in an earlier case: ' (1) subodh gopal base v. Khairunnessa bai, (1955) 60 c. W. N. 361. That apart, there is not even a soupcon of evidence to prove that tarakumar and others were ever the owners of touzi no. 6. So, creation by them of a tenancy in favour of nagendra bala's predecessors is not creation of such a tenancy by the owner of touzi no. 6. On such a basic onsideration, it must be held, as has been held by the two courts below, that nagendra bala has no tenancy under the proprietor of touzi no. 6. And the protection she seeks, because of such a tenancy, from a purchaser in a revenue - sale of touzi no. 6, as subodh gopal is, cannot avail her.

(8) No discussion is, therefore, necessary of subord nate points raised on her behalf. But when they have been so raised, only this may be said :

(i) tre eleventh paragraph of her written statement, averring : "of the suit land, this defendant has been in possession in mokarari mourasi permanent right. This defendant has all along paid rent due from her, and is ready to pay so even now. " cannot lend itself to the interpretation that she is a tenant of subodh gopal, the owner of touzi no. 6, or has been so, under any one of his predecessors, by virtue of a pre - existing settlement all it means, put at its highest, is that she has all along paid rent (to whom she does not say; must be to the owners of other touzis, going by the very frame of the suit) and is ready to attorn to subodh gopal, by paying him rent. But attornment as a tenant is not a unilateral act. It is bilateral. And subodh gopal treats her not as a tenant, but as one without bandobust (settlement) , a non - tenant, so far as he is concerned. (ii) indeed, non - recognition by her of subodh gopal as landlord has been made all the more prominent by her additional written statement which avers inter alia: "the suit land does not at all appertain to touzi no. 6. " the appellate judge means no more when he says: "the additional written statement which was filed on (the) 20th of july, 1953, has made the matter worse" - which, indeed, it has. The disputed land not being inside of touzi no. 6, as she pleads, the owner of the said touzi cannot be her landlord for that land. So, such observation of the appellate judge appears to be above criticism. (iii) without doubt, a tenancy may exist without payment of rent: (2) ashamoyi v. Sarbatosh, air 1939 calcutta 526, and (3) manindranath dinda v. Panchanon mondil, (1950) 55 c. W. N. 171. But that is so, in an agricultural tenancy, when other indicia or or evidences aliunde of a tenancy are there, such as express or implied consent of the landlord, legal liability of one who is on the land to pay rent to the owner thereof, or negotiations for settlement followed by execution of agreements, the granting of amalnamas, payment of selami in part, cultivation by prospective tenants, etc; with no payment of rent yet. In the case on hand, nothing of the kind is found, so far as the relationship of nagendra bala vis - a - vis subodh gopal iis concerned. Where, therefore, as [here, no indicium, no evidence, of a rtenancy by nagendra bala under the 'owner of touzi no. 6, subodh gopal or his predecessors, is to be seen, the rule, that mere non - payment of rent does not necessarily connote no tenancy, does not apply. That is a rule for an otherwise proven tenancy, and an agricultural tenancy at that. Here nagendra bala's tenancy under touzi no. 6, certainly not an agricultural tenancy in chetla, part of greater calcutta, where the land in suit falls, remains unproven. (iv) the ninth paragraph of the plaint does make an alternative case for assessment of a fair rent, should the prayer for joint khas possession fail. So what ? the procedure code (5 of 1908) prohibits neither inconsistent pleadings nor the claiming of reliefs in the alternative. No doubt, the litigant doing so "plainly places himself in peril and may find himself entangled in inextricable difficulty, for evidence adduced in support of two absolutely inconsistent cases, which are mutually destructive, can hardly be expected to secure confidence," as observed by sir asutosh mookerjee in (4) bhubanmohini v. Kumudbala, (1923) 28 c. W. N. 131. In the case on hand, however, evidence led on behalf of the plaintiff subodh gopal has all been one - way, on the defendants having been in possession of the land in controversy without settlement, in so far as it appertains to touzi no. 6, the whole of which subodh gopal is the present proprietor of. No evidence mutually destructive is here. Necessarily, subodh gopal does not find himself entangled in inextricable difficulty either, the averment in the ninth paragraph of the plaint notwithstanding. (v) the solitary witness examined at the trial - and he is the witness for subodh gopal - ro doubt speaks of nagendra bala's possession of the suit land - a vacant land though - for the last 17 or 18 years, for which period he has known the land too. Again, so what ? such possession simpliciter does not prove a tenancy under the owner of touzi no. 6, as "possession for about a decade and a half", without more, by khairunnessa, and that too by having raised structures, did not prove her tenancy in (1) subodh gopal basu v. Khairunnessa bai, (1955) 60 cwn 361, noticed already in another context (paragraph 7).

(9) We, therefore, hold, agreeing with the two courts below, that "the part and parcel question", i. E. , the plea of a mokarari mourasi tenancy under touzi no. 6, fails the appellant.

(10) Now. To the question : has time run long enough to create a bar to subodh gopal's suit ? after purchase in revenue sale on january 6, 1936, subodh gopal took delivery of symbolical possession through collector on may 28 and june 4, 1936. But the suit, out of which this appeal arises, was instituted, as noticed, in the court of the subordinate judge on may 1, 1951. So, apparently, time has run long enough to create a bar. But that is not really so; what is apparent and what is real do not coincide here. Because, the original plaint itself reveals that it was filed in the first court of the munsiff at alipore on june 9, 1947, within the statutory period of limitation, only to be returned to the filing pleader on may 1, 1951; and that very day it was filed in the first court of the subordinate judge, alipore. So, section 14 of the limitation act, 9 of 1908. Prime facie saves limitation.

(11) There is a little more yet. Nagendra bala, by paragraph 3 of her written statement, does take the routine plea of limitation, which is to be found almost in every written statement. By paragraph 14, she takes much more than a routine plea :

"the plaintiff's suit deserves to be dismissed as he has not been in possession of the land in suit within twelve years from the date of the revenue sale referred to by him."

The trial judge frames four issues, the issue on limitation not being one of them. Indeed, he is not addressed even on limitation. The litigation having come up on appeal, fourteen grounds are taken in the memorandum of appeal, the ground of limitation not being one of them. The appellate judge too is not addressed on limitation. For the first time the point is taken before us to second appeal, the seventh ground in the memorandum of appeal to this court specifically pleading it. But we cannot entertain such a plea. We cannot, because to do so will render necessary a probe into the facts, as will presently be seen. And that we cannot very well do, nor permit it to be done at this stage, by directing a remit.

(12) It is not right to say that subodh gopal's suit instituted in the subordinate judge's court on may 1, 1951, is a continuation of his first suit instituted in the munsiff's court on june 9, 1947, even though the subject - matter and the parties to the suits are identical: (5) ramdutt ramkissendess v. E. D. Sassoon and co. , (1929) ilk 5ft calcutta 1048 at pp. 1056 and 1057 (pc). We do not say so either. All we say in that, in terms of section 14 of the limitation act, 9 of 1908, june 9, 1947, to may 1, 1951 - the time during which subodh gopal was apparently prosecuting with due diligence his suit; in the munsiff's court - shall be excluded. Once that is done, the suit is not barred by time.

(13) It is however said, section 14 cannot be called in aid for two reasons, one of which is : the plaint does not show, as it should have shown under order 7, rule 6, of the procedure code, the ground upon which exemption from limitation is claimed, for the suit filed in the subordinate judge's court on may 1, 1951, after the expiration of 12 years, the period prescribed, from the date of the revenue - sale on january 6, 1936, - a date which is the terminus a quo, the starting - point of limitation : (6) maharaja surja kanta acharjya bahadur v. Sarat chandra roy chowdhuri, (1914) 20 clj 563 at p. 566 (pc). True it is that there is no averment in the body of the plaint stating why exemption from limitation is claimed. But the endorsement over the signature of the munsiff, setting out the date (june 9, 1947) when the plaint was presented before him, and admitted by him, and the date (may 1, 1951) when it was returned to the filing pleader for presentation to the proper court, is very much there, and on the body of the plaint too. That secures substantial compliance with the provisions of order 7, rule 6, the plaint having been presented to the proper court on may 1, 1951, the very day it was returned, even if rule 6 be regarded as mandatory; and it was so regarded in (7) m. Thirumalachariar v. S. P. Varadappa chettiar, air 1962 madras 210.

(14) The other reason why section 14 of the then limitation act is said to stand between subodh gopal and the saving of limitation is total absence of due diligence on the part of the plaintiff subodh gopal. No diligence, no invoking of section 14. The point is developed in the manner following: the suit was instituted in the munsiff's court on june 9, 1947, with a total valuation of rs. 510, a sum which is within the limits of the pecuniary jurisdiction of that court. On september 1, 1948, the valuation was enhanced to rs. 2,898, exceeding the limits of the pecuniary jurisdiction of that court. September 1, 1948, to may 1, 1951, when the plaint was returned, makes 2 years and 8 months. Why did subodh gopal 'laze' that long ? ergo, what is patent is not due diligence, the passport to section 14, but the utter lack of it.

(15) This is the matter which renders necessary, very necessary, a probe into the facts (paragraph 11). Did subodh gopal 'laze' ? or he was 'up and about', and yet failed to get the plaint returned to his pleader, because the office of the munsiff 'lazed' ? or was the record missing, and subodh gopal had to wait and wait ? we do not know. No evidence has been led to let us know what we need to. And no evidence has been led, because no issue on limitation was pressed by the appellant in the primary court of facts, in spite of her plea of limitation in the written statement. Had that been done, proper evidence would have been there showing what's what. This is why, sitting in second appeal, we cannot entertain this plea - a mixed question of fact and law as it is.

(16) The authorities cited on behalf of the appellant fall under two classes - those, which far from going the other way, support the way we are going, and those which appear to be clearly distinguishable, not reaching the case on hand.

(17) In the first, class fall - 1. (8) balaram gantia v. Mangta das, (1907) 6 clj 237 (fb). The plea of limitation, not taking even in the memorandum of appeal to this court, and in a second appeal at that, was allowed to be taken, after the case was argued for the whole of a day and a half; and it prevailed. But the point arose on the face of the plaint, excised of its averment on payment of interest, by the mortgagor within ten years of the suit. Excised, because such averment was found, upon evidence, to be "doubly false". More, no question of fact was there to be investigated, with a view to enabling this court to decide the point of limitation, in second appeal. Certainly this cannot be said of the case on hand. On the contrary, as pointed out by sir asutosh mookerjee (then simply mookerjee j.) :

". A court of appeal will not entertain a question of limitation for the first time, when to do so would render necessary a fresh enquiry into the facts. " - as will be very necessary here (paragraphs 14 and 15). To quote another passage : ". It is the duty of the court to deal with the matter (limitation) , provided it arises on pleadings or on the facts found (if the case is in a court of second appeal). "

Here in the case before us no evidence has been led, and, necessarily, no facts have been found. In absence of such finding, mere pleading in the written statement cannot take the appellant far, unless a remit is ordered to investigate facts. But that cannot be done. For, to quote from the same judgment once more :

"if the determination of the question of limitation turns upon facts which were not investigated by reason of the omission of the defendant to take the plea of limitation (here to press the plea of limitation) in the court of first instance, the court of appeal cannot be invited to entertain the point, and remand the case for fresh investigation; if, however, the point arises on the face of the pleadings or on the fact found, the question must be considered."

Here limitation does not arise on the face of the plaint, the endorsement by the munsiff being there (paragraphs 10 and 13). 2. (9) baikuntha nath das v. Sheik azidulla, (1928) 32 c. W. N. 178. A bench decision, it lays down the same law, rankin c. J. Saying :

". If from the plaintiff's own case or from his pleadings or from the admitted or proved facts it would be seen that the plaintiff's suit is statute - barred, it would be the duty of the court in second appeal to entertain even for the first time the question of limitation."

An exploratory remand for further investigation of facts which would show the action to be time - barred ? that, says his lordship, would be "entirely wrong. "

(18) In the second class fall -

1. (10) maqbul ahmad v. Onkar pratap narain singh, (1935) 39 c. W. N. 640 (pc). The principle, for which reliance is placed upon this authority, is that the court has not some sort of judicial discretion enabling it to relieve a suitor from the operation of the limitation act in a case of hardship. There are other privy council decisions of the same class, such as (11) nagendra nath v. Suresh chandra, air 1932 pc 165, laying down : fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship; yet equitable consideration will be out of place, strict grammatical meaning being the only safe guide; or (12) general accident fire and life assurance corpn,, ltd. V. Janmahomed abdul rahim air 1941 pc 6, laying down: a limitation act ought to receive such construction as the language in its plain meaning imports; great hardships, e. G. , cases of poverty, distress and ignorance o3 rights, may exist; yet the statute must be enforced. But we are not going by hardship to any suitor before us,, we are going instead by lack of any material to sustain a finding on limitation raised for the first time before us; in second appeal.

2. (13) lachmi sewak sahu v. Ram rup sahu, (1943) 48 cwn 304 (pc). The ratio of this decision is that performance of the duties by a co - heir sebait is possession on behalf of all coheir sebaits, no ouster being there. This cannot be translated to the grant of settlement, by certain touzi - owners, of the land in suit, not settled by a particular touzi - owner, namely, the owner of touzi no. 6, whose land the land in suit also is. No question of acquisition of a tenancy right by prescription against such a one, a co - owner who has not granted settlement (as subodh gopal or his predecessor has not) can arise. Nor has it been pleaded. In the circumstances, the tenancy of nagendra bala must always be subject to subodh gopal's right. Of joint possession and ultimately partition: (14) balaram guria v. Shyama charan mondol, (1920) 24 cwn 1057, and (15) akshay kumar mukherjee v. Kuran krishna mitra, air 1955 nuc (cal.) 2872.

3. (16) lunatic karali prosad roy v. Probodh chandra mitra, (1950) 54 cwn 900. What is emphasized here is the mandate of section 3 of the then limitation act: dismiss a suit, if timebarred, as indeed you are bound to, although limitation has not been set up as a defence. The judicial committee, however, does not go as far as that, but leaves it to the discretion of the court: (17) raja bommadevara venkata narasimha naidu v. Raja bommadevara bhasyakarlu naidu, (1902) lr 29 ia 76. That apart, the mandate remains idle here. On the face of the plaint, the suit is not barred. No evidence showing so is there. So, that is the end of the matter in second appeal.

4. (18) madhavrao narayanrao patwardhan v. Ram krishna govind bhanu, air 1958 sc 767. Two suits were instituted by the same plaintiff in the munsiff's court. After tortuous progress, one suit was dismissed. Apprehending that the other suit would share the same fate, he had its valuation enhanced, no valuation having been put earlier for the purpose of jurisdiction, and the plaint returned, after it had dragged its slow length for more than ten years. Benefit of section 14 of the limitation act, it is held, is not for such a one, absence of due care and attention having been writ large on his conduct. Say that of subodh gopal ? he valued his fractional interest in the land in june 1947. He did not get it enhanced in september 1948. Apparently the munsiff enhanced it from rs. 500 to rs. 2,888, the mesne profits valued at rs. 10 remaining constant. Such a one cannot be equated with the plaintiff in the madhavarao case who was moving, on his own, in an oblique manner. Non - production of the order - sheet of the suit in the first court, in order to show that the plaintiff was acting with due diligence, and yet the suit did pend for over ten years, is weighed in the madhavarao case. And it is submitted that we should weigh that here too. But there the defendant raised the point of section 14 specifically by a petition and invited the court's decision thereon. Here the defendant raises the general ground of limitation in her written statement and does not press it during the carriage of the suit. Had she not lulled the plaintiff into inaction that way, the record of the munsiff's court would have been forthcoming. And were it not produced in spite of that, certainly we would have weighed it against subodh gopal for the delay of two years and eight months (paragraph 14) as evidencing lack of due diligence. To the old point again: without investigation of facts no decision can be come to on limitation - a mixed question of fact and law. And such investigation is out of the question in second appeal where the point is taken for the first time.

5. (19) des raj v. Ram singh, air 1960 j. And k. 130. There, the plaintiff deliberately undervalued the property worth rs. 53,224 at rs. 11,925, - a difference of rs. 41,299, not a difference of rs. 15,000 or rs. 20,000, in which case

"one may perhaps stretch a point and say that the plaintiff would, in spite of due care and attention, have considered that the property was of lesser value."

herein lies the answer to the case before us. The difference coming to rs. 2,888 minus rs. 500, i. E. , rs. 2,388, and that for a fractional share of the land in june 1947. With all the care and attention, subodh gopal might have considered rs. 500 as the proper value of his share in the land surcharged with litigation. So the des raj case (supra) cannot apply here too.

(19) We, therefore, stand by our conclusion that we cannot entertain the plea of limitation for the first time in second appeal, there being no facts to rest our decision on.

(20) The law laid down in (1) su - bodh gopal basu v. Khairunnessa bai, (1955) 60 cwn 361 : 97 clj 171, to the effect: partition first, possession next, has since been overruled by the full bench in (20) allahabad bank, ltd. V. Subodh gopal bose, air 1963 calcutta 209. So, subodh gopal, respondent here, is entitled to a decree for joint possession, as decreed by the courts bellow, without any condition attached to it.

(21) In the result, the appeal fails and is dismissed with costs.