1. This is an appeal by the principal defendant who is dissatisfied with the appellate decision of the learned Subordinate Judge of Patna dated 24th January 1941 by which he reversed the decision of the learned Munsif and decreed the suit of the plaintiff. The sole question for consideration in this case is whether the appellant had acquired any rights in the land in suit against the successful respondent. The facts are these. The plaintiff is the widow of the late Mr. Hasan Imam, a well-known Barrister-at-Law of Patna, who died in April 1933. Before his death he had made a waqf endowment of all his properties, the plaintiff being the sole mutwalli of the waqf estate for the term of her life. Upon his death disputes arose between his sons and daughters by the first wife on the one hand and with the plaintiff, who was his second wife, on the other hand. The disputes were referred to the arbitration of Sir Thomas Stewart Macpherson and Sir Khaja Mohamad Noor, who gave an award on 6th May 1936 by which the entire waqf estate was divided into two parts, the plaintiff was appointed a mutwalli for six annas share and defendant 2, a son of the late Mr. Hasan Imam, was appointed a mutwalli for the other ten annas share. According to this award a plot of land with an area of about 17 kathas 5 dhurs 25 sq. feet of holding No. 177-A, Circle No. 6 being a part of survey plot No. 158, sheet No. 8, ward No. 2 of the Municipal Survey records was allotted to her of which she obtained possession after partition. Such is her case.

2. The case of the plaintiff further is that during her absence at Hazaribagh, where she resides as the now wedded wife of Mr. Mirza, the defendant wrongfully entered and trespassed upon a portion of this holding and constructed a temporary shed with some bricks and a thatched roof upon it and on 30th May 1938, he refused to quit possession although he was asked to do so. Hence the plaintiff instituted the present suit on 10th June 1938 for ejecting the defendant.

3. The defence to the action inter alia was that the plaintiff has never been in possession, but that on the other hand the defendant has been in possession to her knowledge and upon assertion of his right since April 1925 so that he is continuously in possession for over 12 years without any break or interruption and has been exercising acts of ownership jointly and as of right to the exclusion of the plaintiff thus acquiring a title as full owner. He also alleged that the structure as put upon the land in suit is a permanent structure which he constructed in 1925.

4. The learned Munsif came to the conclusion that the plaintiff obtained title to the land in suit only on or about 6th May 1936 and that her allegation that the defendant wrongfully trespassed over a portion of the land in May 1938 was not true. The plaintiff had relied upon the finally published municipal survey khasra dated 13th December 1933 but the learned Munsif did not accept that as reliable because he thought that when the plaintiff's own case was that she got peaceful possession by partition after the award on 6th May 1936 it was not understood how her name came to be entered in the municipal survey of 1933. With regard to the absence of entry in the municipal survey record of any house of the defendant (defendant's case was that he was in possession since 1925) the learned Munsif was of the opinion that “the survey authorities might have thought proper to omit their existence most probably out of regard for late Mr. Hasan Imam.”

5. The learned Munsif pointed out that the question of adverse possession did not arise at all in this case because the appellant himself admitted that he did not tell Mr. Hasan Imam that he was and would remain in the land forcibly; on the other hand all that he said was that he was there with the consent of the late Mr. Hasan Imam. The other witnesses of the defendant gave evidence to the same effect. But he concluded that:

“It is quite clear that Mr. Hasan Imam settled the defendant under him. It has been held in several cases that a squatter who took into cultivation an occupied or waste piece of land will be presumed to cultivate by the permission of the landlord and is under the obligation to pay him a fair rent when the latter may choose to demand. This creates an implied contract between them creating the relationship of landlord and tenant: vide A.I.R 1940 Cal. 19.1 The defendant could not be else than his under-raiyat. Now he has under the operation of Section 48A of the Bihar Tenancy Act, acquired an occupancy right in the suit land a;nd cannot be evicted therefrom as laid down in Section 49A of the same Act. He has proved successfully that since his occupation he is using the land for growing vegetables, eto.”

6. The learned Munsif, therefore, thought that the defendant had acquired under-tenancy right in the disputed land, and accordingly dismissed the suit.

7. Against this decision there was an appeal to the learned Subordinate Judge who found that the defendant was a licensee of the disputed-land on behalf of the late Mr. Hasan Imam, that he constructed the disputed hut after the road was opened in plot No. 156 in 1934 and therefore “defendant has not been in possession of the disputed land for more than 12 years” and as the title of the plaintiff to the disputed land was well established he thought that the plaintiff was entitled to recover possession. He disagreed with the finding of the learned Munsif regarding the unreliability of the settlement entry of the land in dispute within the Patna City Municipality and observed that the reasoning of the learned Munsif, which I have referred to above, namely, that “the survey authorities might have thought proper to omit the existence of the defendant's hut most probably out of regard for the late Mr. Hasan Imam” was not based on any legal evidence on the record and so unjustifiable. He gave reasons for holding that the plaintiff's story that the defendant surreptitiously erected the hut appears to be very probable and observed:

“Therefore my finding is that the defendant erected the hut on the disputed land surreptitiously after the year 1933 and that the land on which the hut stands is proved beyond doubt to belong to the plaintiff.”

8. Having regard to the character of the disputed land which was admittedly in 1925 a dense orchard infested with monkeys the learned Subordinate Judge held that the land was not capable of actual possession by the plaintiff or by her predecessor-in-interest and, therefore, possession followed title. He also accepted the case of the plaintiff that the possession of the defendant was with leave and license of the late Mr. Hasan Imam. Indeed the learned Munsif himself appears to have taken the same view in one part of his judgment, I refer to the following passage at p. 14 of the judgment of the learned Munsif:

“It is not the defence case that he dispossessed either the plaintiff or her predecessor-in-interest. His case is that when late Mr. Hasan Imam purchased bandarbag (wherein the suit land is situate) in 1925 it was a dense orchard full of monkeys. With his permission and knowledge he cleared a portion of it, erected a house and a privy and broke some parti land into culturable field wherein he is growing vegetables, etc., since then. It need hardly be said that this part of the case has been amply proved by a host of witnesses…. However, there is no question of dispossession in this case; as admitted the defendant is there with the permission and knowledge of late Mr. Hasan Imam” and again at p. 17 the learned Munsif attempted to distinguish the case in 6 Cal. 3112 which held that a suit for recovery of immovable property against a person who had originally been in mere permissive occupation or possession accorded on the ground of charity or relationship was governed by Article 144 and not by Article 142, Limitation Act, upon the ground that “this ruling does not apply in this case as the defendants' possession is not based upon charity or relationship.”

9. The learned Subordinate Judge then addressed himself to the question whether the defendant had acquired the status of an under-raiyat within the meaning of the Bihar Tenancy Act. His findings at p. 11 are quite pertinent and may be quoted here:

“It is, therefore, evident that the plot No. 156 was not an agricultural land at the time the defendant came into occupation of the same. The defendant's own evidence is that he did not acquire any interest in the disputed land from Mr. Hasan Imam but the defendant only wanted Mr. Hasan Imam to permit the defendant to dwell on the disputed land. Thus, having come into possession of the disputed land for the purpose of residence, the defendant cannot subsequently change the character of his possession to that of an agricultural tenant. I have found above that the defendant came into possession of the disputed land not before the year 1933 and as such he must be in possession of the disputed land for less than 12 years. For these reasons I hold that the defendant is not an under-tenant of the disputed land and he cannot acquire an occupancy right in 4 kathas 2 dhurs of the disputed land simply because he grows vegetables on that portion of the land.”

10. The learned Subordinate Judge, as already stated, allowed the appeal and decreed the suit of the plaintiff. Hence the second appeal to this Court.

11. Mr. B.N Mitter, who appeared on behalf of the appellant argued that the appellant was an under-raiyat within the meaning of Chap. 7, Bihar Tenancy Act, and therefore, by the operation of S. 48A he having continuously held land as an under-raiyat shall be deemed to have acquired, on the expiration of that period, right of occupancy in the land which he has so held. He, therefore, argued that he can only be evicted after a notice to quit was served upon him. In my opinion the argument is based upon a complete misapprehension. It does not seem to have been realised in the Courts below that the Bihar Tenancy Act has no application to an area constituted or deemed to have been constituted a municipality under the provisions of the Bihar and Orissa Municipal Act, 1922: see Section 1(3) of the Bihar Tenancy Act. It has been found by the Courts below that the land in suit is situated within the boundaries of the Patna City Municipality. It, therefore, follows that the provisions of Chap. 7, Bihar Tenancy Act, can have no application. The learned advocate drew my attention to Section 3(10) of the Bihar Tenancy Act, which defines a village but I do not see how this has any bearing on the question before me.

12. Assuming this point is open to the learned advocate for the appellant, he cannot succeed because the learned Subordinate Judge has found that at the time the defendant occupied the land originally the land was not agricultural but was a dense orchard infested with monkeys and the defendant was allowed to clear some portion of the land for the benefit of Mr. Hasan Imam's orchard, and, therefore, his subsequently converting the land into agricultural land would not make the appellant an under-raiyat: see also 22 P.L.T 821.3 For these reasons I overrule the first contention.

13. It was then argued that the suit is barred by limitation because the defendant has acquired the right by adverse possession as full owner. The Courts below have pointed out that the defendant did not claim any right of adverse possession. The finding of the learned Munsif on issue 4 has already been stated by me above. Upon the finding that the defendant was a licensee who was allowed to remain on the land with the permission of the late Mr. Hasan Imam, I do not see how any title could accrue to the appellant as a full owner. No authority is needed to support this well established principle but reference may be made to the following passage in the judgment of their Lordships of the Judicial Committee in 51 I.A 2574 at p. 266:

“Their Lordships think that a licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse to that of the licenser, to his knowledge and with his acquiescence.”

14. It was then argued that upon the defendant asserting his right as an under-raiyat and asserting it for more than 12 years, he must be held in law to have acquired every right by adverse possession. Assuming that it is open to any person in India to acquire such a right by adverse possession, the finding of fact in this case that the defendant came into possession of the disputed land not before the year 1933 and as such he was in possession thereof for less than 12 years—a finding which is binding on this Court in second appeal is quite sufficient to disentitle the appellant to claim this right also.

15. Lastly, it was pointed out that in para. 5 of the plaint the plaintiff had alleged that the defendant wrongfully trespassed over a portion of the land measuring approximately 1 katha and that on 11th August 1938 she filed an amendment petition stating clearly that the encroached portion was only 9 dhurs in area. The defendant on the other hand had asserted in his written statement that he is in possession of 4 kathas and 11 dhurs of land, but in spite of this no attempt was made to amend the plaint until 11th March 1940 when the argument had been heard in part. It was, therefore, argued that the plaintiff can succeed in any case to the extent of 1 khata and not to the extent of 4 kathas and 11 dhurs.

16. I do not find any discussion of this complaint in the judgment of the learned Subordinate Judge. Therefore, it is impossible for me to entertain this question now in second appeal. What appears, how-ever, is that the land in suit consists of two parts—9 dhurs upon which the hut stands and 4 kathas and 2 dhurs upon which the defendant has been growing vegetables. The learned Subordinate Judge has given his clear findings both with regard to the 9 dhurs and with regard to 4 kathas and 2 dhurs. It may be remembered that the defendant was claiming under-raiyat right in 4 kathas and 2 dhurs only. Upon these findings the defendant has no right to remain in possession either of 9 kathas or of 4 kathas and 2 dhurs against the wish of the plaintiff. For these reasons I am satisfied that the decision of the learned Subordinate Judge cannot be successfully assailed in second appeal. The appeal fails and must be dismissed with costs.

G.N/R.K

17. Appeal dismissed.