Jwala Prasad, A.C.J:— This appeal is directed against the decision of the Sub-ordinate Judge of Hazaribagh, dated the 10th June, 1921, decreeing the plaintiff's suit for resumption and khas possession with mesne profits of two mukarrari villages named Jobda and Jobdi appertaining to the Ramgarh estate of which the plaintiff is the 16-annas proprietor. The defendants 11 to 14 did not appear in the Court below. They are not parties to this appeal.

The villages were leased out in mukarrari istimrari to two persons, Syed Muzaffar Hussain and Syed Mohammad Hussain, by means of a registered patta bearing date Pous Sudi 14th, 1922, Sambat (31st December, 1865), the kabuliyat whereof has been produced by the plaintiff and marked Exhibit 1.

On 17th September, 1875 (Asin Badi 2nd, 1931, Sambat), Syed Mohammad Hussain, one of the lessees, executed an ekramama (Exhibit C), stating that he had no interest in the lease and that Syed Muzaffar Hussain was the sole lessee and had been exclusively in possession of the mukarrari by payment of nazrana, other expenses and rents, and that his (Syed Hussain's) name was mentioned in the lease in accordance with the prevailing custom in the Ramgarh estate to make mukarrari settlement in the name of two persons.

On 1st August, 1879 (29th Sawan, 1936), Syed Muzaffar Hussain executed a deed of absolute sale (Exhibit B) in favour of Babu Sahay Singh, ancestor of the defendants, transferring his entire interest in the disputed villages as well as in other villages for a consideration of Rs. 1,861.

The original lessees are dead. The exact date of their death is not known. The plaintiff's witness, Sheo Sahay Lal, simply states that they

“Died more than twelve years ago.”

The defendants stated in their written statement, filed on the 28th August, 1920, that they died 25 to 30 years ago. Such is also the statement of their witness no. 1, Rambhuwan Singh. The Sub-ordinate Judge has found that they died about 30 years ago, that is, in 1891-1892, (1947-1948). This is not disputed by the plaintiff.

The plaintiff's case is the simple one, that upon the death of the original lessees his right to re-enter accrued, that the defendants as assigns of the lessees

“continued in possession with the assent of the landlord as tenants from year to year notwithstanding the termination of the tenancy on the death of the said lessees”,

but that at the time of the preparation of the record-of-rights they falsely asserted for the first time that they were entitled to continue in possession as mukarrari istimraridars and that they were recorded as such in the record-of-rights. The plaintiff, treating the defendants as tenants from year to year, served them with notice to quit. The first notice (Exhibit A) is dated the 1st August, 1907 (8th Sawan, 1964, Sambat), and calls upon the defendants to quit at the expiration of that year, which expired on the 15th Chaitra, 1964, Sambat (corresponding to the 1st April, 1908). In spite of this notice the defendants continued in possession and the last notice (Exhibits 2 to 4), dated the 20th August, 1919, was served on the 10th September, 1919 (plaintiff's witness no. 2, Rama Prasad), and called on them to quit by the end of the Sambat year, which expired on the 15th Chaitra, 1977 (20th March, 1920). The suit was instituted on the 1st April 1920.

The defendants assert that the original lessees, Syed Muzaffar Hussain and Syed Mohammad Hussain, acquired a permanent mukarrari under the patta (Exhibit 1) of the 31st December, 1865, that the defendants purchased this permanent mukarrari interest by the kabala (Exhibit B) in 1879 and since then have been in possession in virtue thereof, and that they are in adverse possession of the same and are not year-to-year tenants with the permission of the landlord after the death of the original lessees. They also plead limitation.

Upon the pleadings of the parties various issues were raised in the Court below. We are concerned only with four of them, namely, nos. 2, 3, 4 and 5 of the Court below:

“2. Is the suit barred by limitation?

3. What is the meaning of the term mukarrari istimrari? Does it mean life-grant or lease in perpetuity?

4. Have the defendants been tenants from year to year with the assent of the landlord after the death of the original lessee?

5. Has the defendant obtained a right to hold the mauza in suit by prescription and adverse possession?”

With regard to issue no. 3, as to whether the mukarrari istimrari grant in Exhibit 1 was a perpetual grant or whether it enured for the life-time only of the grantees, the question seems to have been concluded by the decision in the case of Ram Narayan Singh v. Chota Nagpur Banking Association. It appears that about the time when the present grant was made by the registered patta of the 31st December, 1865 (kabuliyat, Exhibit 1), Maharaja Ramnath Singh granted a large number of villages in the years 1864-1865 in mukarrari istimrari lease to different grantees. In course of time, when the original grantees began to the off, a question arose between the ancestor of the plaintiff, the present owner of the Ramgarh estate, and the heirs or assigns of the original mukarraridars, as to the nature of the grant. The plaintiff's ancestors alleged that the grants were merely life-tenures and were resumable after the death of the original grantees, whereas the heirs or assigns of the grantees alleged that the grants were permanent, heritable and transferable grants and the plaintiff had no right of resumption. Some test cases were instituted and the controversy between the parties was finally set at rest by the decision of the Calcutta High Court in the case referred to above, wherein it was held that grants, in the terms in which the grant now in controversy is couched, did not create an estate of inheritance and were not permanent and heritable, but were merely life-tenures and that the plaintiff's ancestor had a right of resumption. Thereafter a large number of suits was instituted by the Ramgarh estate against the heirs or assigns of the original mukarraridars for resumption of the grants, and several of them halve come to this Court in appeal. The present case is one of those resumption suits.

The terms of the lease are set out in the kabuliyat (Exhibit 1). The lessees are two in number, Syed Mohammad Hussain and Syed Muzaffar Hussain. The document states that the lessees have obtained mukarrari istimrari of mauzas Jobda and Jobdi in pargana Dantar (district Hazaribagh), exclusive of jagir and brit lands, coal mines, sub-soil rights, at an annual jama of Rs. 344. The lessees then expressed their, readiness to cultivate and improve the village, to keep the tenants contented and to construct ahars and so forth. The rent is payable in kists and provision is made for certain small salamis. Default in payment of rent is to involve cancellation of the mukarrari. Losses from drought and so forth are to fall on the lessees who undertake not to do anything injuriously affecting the boundaries. Power to transfer is withheld declaring that any transfer of the interest created by the deed would be “null and void.” The cutting down of fruit-bearing and income yielding trees is forbidden, and the obligation to replace fallen trees is imposed on the lessees. These terms are exactly the same as those dealt with in the case of Ram Narayan Singh v. Chota Nagpur Banking Association, and in fact a part of one and the same scheme of Ramgarh estate administration. I have, therefore, borrowed the description of the terms given in the judgment of his Lordship Sir Lawrence Jenkins, C.J Upon a review of the authorities, and on the basis of the decision of their Lordships of the Judicial Committee in the case of Toolshi Pershad Singh v. Ram Narayan Singh which was followed in Narsingh Dyal Sahu v. Ram Narayan Singh, his Lordship held that “it must be taken as settled that the phrase ‘istimrari mukarrari’ in a patta in the district of Hazaribagh does not per se convey an estate of inheritance, but that it is open to us to see whether (a) the other terms of the instrument, (b) the circumstances under which it was made, or (c) the subsequent conduct of the parties show the intention with sufficient certainty to enable us to pronounce that the grant was hereditary.” As pointed out in that case, notably the provisions as to trees and restraint on transfer do not point to a grant in perpetuity, the leases were granted by the raj not by way of bounty but as a matter of bargain and, with a view to give continuity to grantees, the grant was in favour of two persons so that the terms of the lease may be prolonged to two lives.

In the case of Agin Bindh Upadhya v. Mohan Bihram Shah it was pointed out that the words ‘istimrari mukarrari’ are of Arabic origin and literally mean continuous, running and fixed. Their dictionary meaning is of little use as they might mean continuous or permanent during the life-time of the grantee or permanent as regards hereditary descent. Therefore the expression ‘mukarrari istimrari’ in itself does not necessarily convey an estate of inheritance: [vide also Beni Pershad Koeri v. Dudhnath Roy]. There are no words in the deed expressly conferring any right of inheritance; not even such expressions as ‘naslan bad naslan’, or ‘farzand be farzandan’ indicative of the right of inheritance. There is no evidence of any circumstance under which the deed was granted or any subsequent conduct on the part of the parties indicative of the grant being hereditary. The lessor, “Raja Ramnath Singh, died soon after the execution of the deed in 1866 as pointed out by Woodroffe, J., in Ram Narayan Singh v. Chota Nagpur Banking Association.

The Court below is, therefore, right in holding that the mukarrari istimrari deed in question did not convey a grant of permanent and heritable nature but a life-tenure only upon the grantee. The sale deed (Exhibit B), dated the 1st August, 1879, executed by Syed Muzaffar Hussain, cannot confer a higher title upon the defendants' ancestor, Sahay Singh, although it recites that the vendor Syed Muzaffar Hussain had held the villages in perpetual mukarrari istimrari and purports to convey a permanent mukarrari interest to the transferee Sahay Singh. The vendor could not give a larger interest in the mauzas to the vendee than he himself had [vide Beni Pershad Koeri v. Dudhnath Roy].

The survey record-of-rights prepared in 1914 describing the interest held by the defendants as mukarraridars is entirely based upon the sale deed, dated the 1st August, 1879, executed by Syed Muzaffar Hussain in favour of Sahay Singh. This is of no consequence and may be ignored. The lessor's right to re-enter, therefore, accrued upon the death of the survivor of the two lessees.

The tenure held by Syed Muzaffar Hussain and Syed Mohammad Hussain came to an end and so also the interest conveyed by them to Sahay Singh also came to an end upon the death of the original lessees, Syed Muzaffar Hussain and Syed Mohammad Hussain, which occurred in 1891-1892.

In fact, the sale by Syed Muzaffar Hussain to Sahay Singh in 1879 was against the terms of the grant which expressly says that the lessees shall

“Have no right at all to transfer the said matizas”

and declares such a transfer to be “null and void.”

Sahay Singh, however, continued to be in possession of the property. He died in 1322, Fasli, (1914-15) (D.W I).

The plaintiff's case is that although his right to re-enter accrued upon the death of the lessees the defendants-purchasers continued in possession with the assent of the landlord as tenants from year to year. No evidence has been adduced as to how this assent was given nor as to how the defendants were made yearly tenants. Witness no. 1, Sheo Sahay Lal, is the only witness examined on behalf of the plaintiff on this point. In his examination-in-chief he simply says:

“Both the mukarraridars died more than twelve years ago, and since then their assigns were allowed to remain in possession of the village as yearly tenants.”

In cross-examination he admits that

“the plaintiff has got warjas and jamabandi books in respect of the mauza in suit and the mauza is entered in the jamabandi books in the names of the original mukarraridars.”

He further says:

“I cannot give the names of the original persons in whose possession the village came after the death of the original mukarraridars, so I cannot name the persons in whose possession the village was allowed to remain after the original mukarraridars.”

Then he says:

“There was a general order passed by the Raja in 1968, Sambat (1906), that the heirs and assigns were to be treated as yearly tenants. The defendants were not present then.”

The evidence of this witness is worthless to show that after the death of the mukarraridars the defendants became yearly tenants. It has been argued that marfatdari receipts for rent ‘were granted to the defendants by the lessor landlord and hence they became yearly tenants. In the first place there is no such allegation in the plaint. Secondly, there is no evidence that any marfatdari receipt was granted. The said witness, Shiv Sahay Lal, in his examination-in-chief made a general statement that

“both, Raja Earn Narain Singh and Raja Ram Nath Singh (?), used to grant marfatdari receipts to the heirs or assigns of deceased marfatdars.”

This is a vague and general statement and does not necessarily refer to the defendants in the case and this is made clear by his statement in cross-examination:

“I am not sure if marfatdari receipts were granted to the holders of the disputed village.”

He has made it clearer still by a further statement that

“no rent was received from the heirs or assigns of the deceased mukarraridars of the disputed village.”

It may be noted that the defendant do not admit that any rent was paid to the plaintiff or his predecessor-in-interest or that any receipt was granted to them. On the other hand, the case of both parties was that in 1960 or 1961, Sambat (1903 or 1904), the plaintiff wanted to grant marfatdari receipts and the defendants refused to take any such receipt but insisted upon a receipt being granted in their own names, and therefore they did not pay rent [see the evidence of Shiv Sahay Lal and of defendants' witnesses nos. 1, 2 and 3]. Therefore, the granting of marfatdari receipts is not proved. The defendants plead nonexistence of such receipts. The plaintiffs says that such receipts were granted, but no counterfoils of such receipts have been produced, although an opportunity was given to the plaintiff to produce the counterfoils even in this Court.

Assuming for the sake of argument that marfatdari receipts were granted, that will not in itself constitute any relationship of landlord and tenant between the plaintiff and the defendants. In the case of Khoodee Ram Chatterjee v. Rookhinee Boistobee, it was held that marfatdari receipts do not confer any raiyati title on a marfatdar. In that case the receipts or dakhilas showed the name of Nabokristo as the raiyat and Rookhinee's name as merely marfatwar (marfatdar). It was held that such payment of rent did not confer any right on Rookhinee in the property. This case was followed in Mullick Abdul Guni v. Nand Lal and Debnarain Dutt v. Baidya Nath. It was there held that the receipt of rent by the landlord from a transferee of a non-transferable holding not on his own account but on account of the transferor is not a recognition of the transfer and that the transferee may acquire the right to hold the land as an occupancy raiyat by possession as a raiyat for a period of 12 years and by assertion of his title as such. It was further pointed out that the receipts describing the transferee as only sarbarakar retaining the name of the vendor under the head of the tenant's name would go to show that the landlord did not by these receipts mean to recognize the defendants as tenants [Ram Taruk Ghossal v. Radha Bulldb Sircar and Gaur Lal Sirkar v. Rameshwar Bhunuk. The transfer was therefore held not to have been recognized and the defendant was held liable to be ejected.

Again in another case of the present plaintiff where in similar circumstances the heirs of the grantees were in possession after the expiry of a similar mukarrari istimrari lease, this Court (Das and Ross, JJ.) in Hari Gir v. Kumar Kamakhya Narain Singh very recently pointed out that such marfatdari receipts do not prove any tenancy. In that case as in the present case, the defendants wanted receipts in their own name but the landlord refused to grant receipts other than marfatdari receipts. Their Lordships held that although the plaintiff was willing to accept rent from the defendants, he was not willing to recognize their status as tenants. I have already said that there is no evidence of any rent having been paid by the defendants to the plaintiff or his predecessor in interest. Shiv Sahay Lal expressly admitted this.

Mere receipt of rent would also not have been sufficient to make the defendants tenants from year to year. The plaintiff's case is that the defendants were tenants from year to year. The defendants' case is that they are perpetual tenure-holders. Therefore, upon the case of both sides, rent is payable to the landlord. Mere payment of rent will not establish the case of either party. In order to make defendants yearly tenants the rent must have been paid and received upon the understanding that theywere so. It is well recognized that a defendant can set up a plea of adverse title to a limited interest, such as an occupancy right or a perpetual tenure (Ramchum Laha Bukshee v. Mungul Sircar, Watson and Company v. Rani Shurut Sundari Debee Dinomoney Dabea v. Doorgapershad Mozoomdar, Maidin Saiba v. Nagapa, Madhava v. Narayana, Chandri v. Daji Bhau, Thakore Fatesingji Dipsangji v. Bamanji Ardeshir Dolal, Bagdu Majhi v. Raja Sri Sri Durga Prosad Singha and Sujjad Ahmad Chowdhury v. Ganga Charan Ghose]. A defendant can also plead tenancy and, in the alternative, possession of a limited interest [Icharan Singh v. Nilmony Balidar and Ishan Chandra Mitter v. Raja Ramranjan Chakrabutty]. In such cases payment or non-payment of rent is immaterial [vide Sankaran v. Periasami and Thakore Fatesingji Dipsangji v. Bamanji Ardeshir Dalai]. The receipt of rent will not necessarily indicate that the landlord recognized the interest of a permanent tenure in the tenant nor will it show that the tenant accepted the position of a yearly tenant. The question, however, does not arise in the present case as there is no proof of payment of rent.

It has, however, been contended that upon the defendants' admission that a rent decree was realized from them by Narsingh Dayal Sahu, when mortgagee of the villages in question, and that Narsingh Dayal Sahu sued them for rent and obtained rent decrees which were duly paid off, the defendants must be held to have been in possession as yearly tenants. In the written statement the defendants say that during the life-time of the mortgagor, Narsingh Dayal Sahu, the said mortgagee brought a rent suit against the original mukarraridar and the common ancestor of these defendants, alleging that the mauza was in permanent mukarrari and after the death of the original mukarraridar took out execution of the decree obtained in that suit against the common ancestor of the defendants, and realized the decretal amount. The defendant no. 4, who was examined as witness no. 1 for the defendants, stated in his evidence that

“Narsingh Dayal Sahu was zarbharnadar of disputed and other villages and he brought three or four rent suits and got rent decrees which were duly paid up.”

On behalf of the plaintiff in this Court it was stated that they have discovered certain documents showing realization of rent from the defendants and they filed those documents in this Court. Now the documents, which are the private papers of the plaintiff, cannot at this stage be taken in evidence. The other documents, which are copies of the registers of suits, show that the mortgagee, Narsingh Dayal Sahu, obtained rent decrees and realized the decretal amount, the judgment-debtors being the original lessees, Syed Muzaffar Hussain, as well as Sahay Singh the transferee ancestor of the defendant. Some of these are against Sahay Singh alone and some against Syed Muzaffar Hussain, the original lessee, alone. These registers do not show how the interest of Sahay Singh was described in the plaint. Besides, they do not advance the case of the plaintiff beyond the admission of the defendants in their written statement and in their evidence referred to above. In the first place the payment of the rent decrees is not inconsistent with their plea of being permanent tenure-holders liable to pay rent under the sale deed, Exhibit B. If they had not satisfied the rent-decree the tenure would have been sold up and whatever right they claimed or had would have been extinguished. The payment of rent decrees was, therefore, to preserve the right which they claimed. The payment to a mortgagee does not create any recognition by the mortgagor of the interest of the defendants [Woodroffe, J., in Ram Narayan Singh v. Chota Nagpur Banking Association]. The mortgage deed now filed shows that the mortgagee was to remain in possession for six years, that is, from 1948 to 954, Sambat (1891-1892 to 1897-1998), and the entire mortgage debt was to be satisfied within that period from the usufruct of the villages mortgaged, including the villages in question, and the mortgaged property was to be released to the plaintiff on the expiry of the period. Thus the zarbjiarnadar, mortgagee remained in possession from 1948 to 1954, Sambat.

The defendants asserted in their written that they did not pay any rent to the plaintiff after the expiry of the bharna deed. This statement has not been challenged in evidence by the plaintiff, while the defendant no. 1, in his evidence, states that after the mortgage was satisfied and the proprietary interest in the property came into possession of the plaintiff, no rent was ever paid. This is consistent with the case of both the parties, namely, that in the year 1960, Sambat, or 1961, Sambat, the plaintiff refused to grant receipts in the names of the defendants and was only willing to grant marfatdari receipts retaining the names of the original tenants. The defendants, therefore, remained in possession of the property by the laches of the plaintiff. They were not tenants at all. The defendants' possession was not rightful. No doubt, by the acts of the parties a tenancy from year to year might have been created but no such act has been proved in the present case.

Therefore, as held in the case of Hari Gir v. Kumar Kamahhya Narain Singh, the right to eject the defendants commenced from the death of the original lessees, and the period of limitation for a suit to eject the defendants commenced from that time. The plaintiff's suit is, therefore, barred by limitation.

The defendants relied upon the case of Krishnaji Ramchandra v. Antaji Pandurang. In that case the land in dispute was leased to Ramchandra for life, who died in 1871 and after his death his heirs, the defendants, continued in possession without obtaining a fresh lease or paying any rent to the landlord. In 1880 the landlord sued to eject the defendants. The defence was that the suit was barred by limitation. Telang, J., held that the suit was not barred upon the ground that after Ramchandra's death the defendants, though not in possession as tenants, were not trespassers and that their possession was permissive and not adverse until they expressly set up a title of ownership in the property. As shown in the case of Hari Gir v. Kumar Kamakhya Narain Singh that case was entirely based upon Hellier v. Sittcox which is an authority for the proposition that an action for use and occupation would lie against a person who is in the possession of demised land after the death of a tenant with the permission of the landlord and it is not an authority for the proposition that a person in possession could not plead lapse of time if an action for ejectment was brought after the expiry of the period of limitation. This case was dissented from in Kantheppa Raddi v. Sheshappa and overruled in Chandri v. Daji Bhau, where it was held that the possession of a tenant holding over is wrongful and if there is no evidence from which a fresh tenancy can be inferred, time begins to run against the landlord when the period fixed by the lease expires. In that case there was a lease for a year; at the end of the year possession was not given up nor was any rent paid. A suit was brought more than twelve years after the expiry of the lease. It was held that the suit was barred. The aforesaid case was also dissented from in Vadapalli Narasimham v. Dronamraju Seetharamamurthy.

The next case relied upon is the decision in Lalji Sahu v. Gajjan Mahto (Sharfuddin and Roe, JJ.). That was a case of the Ramgarh estate and the patta granted was an istimrari mukarrari lease similar to Exhibit 1. The mukarraridar executed a zarbharna deed which was purchased by the plaintiff in execution of his mortgage decree against the mukarraridar in 1906. He brought a suit for rent for the years 1963, 1964 and 1965, against the tenants of the village. Notice to quit was served by the Maharaja upon the zarbharnadar in 1907, directing him to vacate the property before the close of 1964, Sambat, that is, by the 1st of April, 1908. On the authority of Beni Pershad Koeri v. Dudhnath Roy it was held that the mukarrari grant became void upon the death of the mukarraridar, so also the zarbharna and the plaintiff's purchase. The question was whether the plaintiff was entitled to recover rent for the years in suit, the defence contention being that the plaintiff was a mere trespasser after the death of the mukarraridar and he had no title to receive any rent. The plea of the tenants defendants was overruled upon the ground that the plaintiff could maintain the suit so long as the notice to quit had not been served upon the zarbharnadar. That notice being served in 1907 after the expiry of Sambat year 1964 it was held that the plaintiff was entitled to recover rent for the year 1963-1964, and not for 1965, for before that he was not a trespasser but was a tenant by sufferance liable to be ousted at a moment's notice. That ruling does not seem to apply to the present case, for in the present case the question is not whether the defendants being in possession could realize rent from the tenants of the village, but as to whether the right to eject them by the superior landlord arose from the date of death of the original mukarraridars, and whether time should commence from the death of the mukarraridars. Further in that case it was found that the zarbharnadar did not assert any adverse title.

The next case relied upon is Ram Chandra Singh v. Bhikhambar Singh. Raja Madan Mohan Sinha was the holder of the impartible zamindari of pargana Joypore. Raja Kasi Nath Sinha was the eldest son, the plaintiff's father, and Hikim Gopal Sinha was the second son, the defendant's father. Raja Maaan Mohan Sinha made a khorposh grant to the defendant's father which, was terminable upon the death either of the grantor or grantee. The grantor, Raja Madan Mohan Sinha, died in 1858. The grantee, the defendant's father, died in 1877. Raja Kasi Nath, who had succeeded Raja Madan Mohan Sinha, died in 1885 Although the grant terminated in 1858 when the grantor died or 1877 when the grantee died it was allowed to continue in the defendant's possession. In that case there was sufficient evidence in certain letters, A, B and C, to show that in spite of termination of the grant the plaintiff's father and afterwards the plaintiff consented to continue the grant to the defendant as a yearly tenancy. This was found as a fact and upon that finding it was held that there was no adverse possession on the part of the defendant sufficient to bar the plaintiff's suit under section 139 of the Limitation Act. It was pointed out that a tenancy by sufferance would not by itself make the possession of the holder rightful so as to prevent limitation from running but at the same time if the landlord or the person entitled to redeem the tenancy does anything to indicate his assent to the continuance of the tenancy, that would in itself be sufficient to convert the tenancy by sufferance into a tenancy from year to year. Therefore it is to be found in the circumstances of each case whether there was a yearly tenancy created by the act of the landlord and the tenant.

The next case relied upon is that of Maharani Beni Pershad Koeri v. Dudhnath Roy. In that case Maharaja Jai Prakash Singh of Dumraon had made a maintenance grant to Lal Barmeswar Bakhsh Singh resumable on the death of the grantee. In 1857 he surrendered the grant to Maharaja Maheswar Bakhsh Singh and shortly afterwards died. Before this Lal Barmeswar Bakhsh Singh had executed a mukarrari istimrari patta, in favour of Ram Golam Raut. Maharaja Maheswar Singh abdicated in 1868 and died in 1871 and was succeeded by his son Maharaja Radha Prasad Singh. The patta to Ram Golam Raut came to an end upon the surrender and subsequent death of Lal Barmeswar Bakhsh Singh. Maharaja Radha Prasad Singh might have resumed the mauza or have made a fresh grant either in the terms of the patta or otherwise or have allowed Ram Golam Raut to remain in possession on paying the rent, and, as a matter of fact Ram Golam Raut was allowed to continue in possession on payment of the rent mentioned in the patta. In 1879, Ram Golam Raut instituted a suit for rent against the tenants of the mauza alleging that he had held the village in perpetual istimrari mukarrari. The Maharaja presented a petition of objection in which he stated that Ram Golam Raut had no mukarrari interest but held only a service grant terminable at the pleasure of the proprietor. The Maharaja was made a defendant. The result is not known, but on 25th May, 1885, the Maharaja brought a suit against Ram Golam Raut for recovery of arrears of rent. Later the Maharaja brought a suit for declaration of his title to khas possession of the mauza after the death of Ram Golam Raut. Ram Golam Raut died in 1893 and the plaint was amended and the prayer for possession was added. Although the patta had become void and spent, yet a life-tenancy of the defendant was admitted. Under the circumstances it was held that he was a tenant for life, and not a tenant-at-will, who could be ejected during his life-time and that therefore no limitation applied to the case. The suit for a declaration was converted into a suit for possession such as might be brought just after the death of the life tenant.

In the present case the tenants for life were the original mukarrafidars and the defendants were not recognized as tenants at all. The limitation in the present case would, therefore, run from the death of the original grantees, and was never interrupted by any act of the landlord making the defendants yearly tenants.

After the death of the original mukarraridars what was the position of the defendants? It is now concluded by the authorities that their possession was wrongful. A fresh act had to be done in order to make them tenants. The original mukarrari had become extinct. Their sale deed had become void. They were not the original grantees. There was no privity between them and the landlord. A tenancy can lie created by acts indicative of establishing the relationship of landlord and tenant. This may be express, implied or gathered from the conduct or circumstances of the parties. A trespasser or a person in wrongful possession may be converted into a tenant. He may become a tenant-at-will or a tenant for a term. To create a valid tenancy for a period exceeding one year certain formalities must be observed. Under section 107 of the Transfer of Property Act a lease for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument. Section 116 deals with the effect of holding over by a lessee and with the creation of a tenancy by implication. There must already be a lease and it must have been determined. There was no lease in the present case in favour of the defendants. There was a lease of the property in favour of the original mukarraridars, lasting till their death. It became an extinct document after their death. The rights created there were not transferable nor heritable, so that the extinct document was also incapable of being continued. The defendants, therefore, needed a fresh contract express or implied between themselves and the landlord in order to have a tenancy of the property in question. They could not hold over under the extinct lease granted to the original mukarraridars. Their mere holding over by assent of the landlord to the continuance of their possession or by the landlord accepting rent from them would not make them tenants from year to year or yearly tenants. That kind of tenancy under section 116 of the Transfer of Property Act is only created by law in favour of the original lessee. Therefore section 116 applies only to the case of a lease fixed for a term of years and not to a lease for life. The representatives or assigns of the transferees of a tenant for life will not become tenants from year to year, without the formalities of section 107 of the Transfer of Property Act, that is, they can become tenants from year to year only by means of a registered document. They may of course become tenants-at-will or for a year without any registered document, that is by a verbal contract. Receipt of the rent from persons in possession may, under certain circumstances, create a verbal lease for a year, but a mere receipt of rent not inconsistent with the plea of the defendant, that is when the defendant sets up an adverse title of a higher kind, cannot create a tenant at all or a tenant for a year. In this view I do not agree with the decision of Das and Bucknill, JJ., in the case of Ram Lochan Vaid v. Kumar Kamakhya Narain Singh, for there was no tenancy which could be continued after the death of the original mukarraridars by mere receipt of rent from the defendant. This view is supported by the case of Vadapalli Narasimham v. Dronamraju Seetharamamurthy, where it was held that the representatives of a tenant on sufferance are mere trespassers and the lessor cannot by his assent alone convert such representatives into tenants without their concurrence and such a representative who enters on possession at the death of the original lessee is not a tenant within the meaning of Article 139 and a suit for possession against him will lie under section 144. This was the view also expressed in the decision of Ramakrishna v. Ranga. In Luxumanana Palit v. Moraba Ramkrishna it was held that possession under an invalid deed or under an expired lease or under a void lease for twelve years was a sufficient answer to a claim to eject.

Now what is the claim set up by the defendants in the present case? They assert a title by adverse possession. The learned Sub-ordinate Judge refers to their written statement and says that they did not make any specific allegation of adverse possession nor in the evidence. He refers to Sahay Singh's (defendants' predecessor) interview with the Raja at Padma in the year 1961, Sambat, and says there is nothing in that evidence to show that during the course of that interview any assertion was made by Sahay Singh of holding over possession of the villages as a permanent mukarraridar. The statement of Rijhan Singh, who in his evidence says that Sahay Singh, in the course of that interview, gave out that he had purchased dwami mukarrari right in the village and as such he was in possession thereof, is stigmatized as having been tutored next day in order to improve the statement of defendant no. 4. Then the learned Sub-ordinate Judge refers to the notice of 1907 (Exhibit A) and says that, the defendants' omission to reply to that letter and to assert the perpetual mukarrari interest claimed by them shows that it was never in the contemplation of the defendants or their ancestor to make any assertion of adverse possession. Now in their written statement the defendants have expressly asserted that the mukarrari granted to the original lessees was of a permanent character and that they purchased that permanent right by the deed of absolute sale, dated the 1st August, 1879, and that they were in possession throughout in virtue thereof. They have also asserted that the mortgagee of the plaintiff, Narsingh Dayal Sahu, had recognized their permanent mukarrari in the suit for rent brought by him against the original mukarraridar and themselves. They have also said that Sahay Singh went to the plaintiff's ancestor and applied for registration of their names and offered to pay rent, but the plaintiff's ancestor rejected their application, refused to accept rent and gave a notice to the defendants intimating that he would bring the disputed villages into his direct possession and sent his man to take possession of the said mauza out he failed to take possession and in spite of the utmost efforts of the plaintiff these defendants have continued to be and are in adverse possession of the same. They also say that after the expiry of the period of the zarbharna in favour of Narsingh Dayal Sahu (in 1898) they did not pay any rent to the plaintiff but insisted that they would make payment of rent only when receipts should be granted in their names. Upon these allegations set out in their written statement the defendants assert that they have acquired a permanent mukarrari right by adverse possession. This is a plea of adverse possession of a limited interest and not of the entire interest in the property. The plaintiff in his evidence did not deny any of these allegations made by the defendants. On the other hand, witness no. 1 refers to the interview alleged by the defendants and admits that Sahay Singh wanted rent receipts in his own name, but the Raja refused to comply saying that was not the dastur, so no rent was received from him (Sahay Singh). No doubt, this witness says that the Raja said that he would treat them as yearly tenants and Sahay Singh did not protest against such permission. He, however, admits that no written parwana was issued to the heirs or assigns of the deceased mukarraridars treating them as yearly tenants, nor is there any note in the plaintiff's books to that effect. The evidence, of defendant no. 4, examined as defendants' witness no. 1, is not open to the criticism made by the learned Sub-ordinate Judge. He stated what he heard from his father, viz., the Raja refused to comply (with Sahay Singh's demand to grant receipts in his own name) and said that they (the defendants) should give up possession and he would enter into khas possession, but Sahay Singh replied that it was not possible for him to give up possession as he had spent a lot of money in improving the villages. The witness further says that a month after in Phagun 1961, Sambat, the Raja sent two sawars and three peons to Jobda and they sent for the raiyats of the disputed village and told them to go to Padma and execute kabuliyats in favour of the Raja. On hearing all this, the witness thus describes what took place:

“I went up and remonstrated with the Raja's sawars and said that they had no right to take khas possession of the villages and that I shall hold them as mukarraridar. Thereupon they (the sawars) left the place.”

This evidence, if believed, is an assertion of adverse title to hold possession as mukarraridar, denying the right of the Raja to take possession of the villages. This incident is corroborated by two other witnesses on behalf of the defendants. Witness no. 3, Rijhan Singh, who is aged 65 and so competent to speak of the incident, says that he went with Sahay Singh and Ram Kishun Singh, etc., to the Raja at Padma and heard the interview referred to above. He states that Sahay Singh said that he had purchased dwami mukarrari right in the villages and that he would not accept marfatdari receipts whereupon the Raja asked him to give up possession but Sahay Singh refused to do so.

The evidence of the defendants on this point falls into two parts: the interview with the Raja at Padma in 1960-1961, Sambat, and the subsequent attempt of the Raja to take khas possession and the refusal of the defendants to give up possession. Any one of these incidents is sufficient to set up an adverse title of a permanent mukarrari. The learned Sub-ordinate Judge does not refer to the latter incident. He refers to the former and discards it upon the ground stated above. Both the incidents are said to have taken place in 1903-1904, much more than twelve years before the present suit was instituted.

I differ from the view of the learned Sub-ordinate Judge and hold that the defendants asserted a permanent mukarrari interest and had been in possession to the knowledge of the plaintiff and have thus acquired an indefeasible title as mukarraridars. The learned Sub-ordinate Judge has overlooked the most important fact in this case that the plaintiff admits the defendants' possession as transferees. In the plaint as well as in the evidence. Shiv Sahay Lal, plaintiff's witness no. 1, has deposed that since the death of the mukarraridars, more than twelve years ago,

“their assigns were allowed to remain in possession of the village as yearly tenants”

and so the plaint also states (paragraph 3). Thus the plaintiff knew what the defendants were holding under a sale deed which described the interest conveyed to them as perpetual istimrari mukarrari. The defendants were not holding in any other capacity. The plaintiff and his predecessors knew fully that the heirs and assigns of the mukarraridars were claiming a permanent interest, whereas the plaintiff and his predecessors were claiming that the original mukarraridars had only a life interest and their heirs and assigns were merely trespassers. The previous history is well-known and fully set forth in the judgment of Woodroffe, J., in Ram Narain Singh v. Chota Nagpur Banking Association. Shiva Sahay Lal indicates this in his evidence. He admits that the Raja had brought suits for resumption against the heirs and assigns of mukarraridars holding under leases similar to that in the present case. He says the Raja was unsuccessful in the resumption suit against Amir Khan which was in 1934-1935, Sambat (1877); that he got a decree for resumption in the suit against Narsingh Dayal Sahu in 1903. He says that during the interval no resumption suit was brought because it was apprehended that the Raja would not succeed. This evidently means that all the heirs and assigns of the mukarraridars were claiming to hold the villages as permanent mukarraridars. In 1958, Sambat (1902), the Raja's suit against Girdhari Singh was decreed and that against the Chota, Nagpur Banking Association in 1915. The latter suit was instituted in 1910. The cases referred to by Shiv Sahay Lal are given in detail in the judgment of Woodroffe, J., in the aforesaid case of Ram Narain Singh v. Chota Nagpur Banking Association. The history of the litigation in connection with a large number of leases including the present one granted by Raja Ramnath Singh between the years 1864 and 1866 and the fluctuating state of the law as to the meaning of mukarrari istimrari from that time up to 1915 will clearly show that the claim of the heirs and assigns of mukarraridars including those in the present case that they had acquired under the pattas permanent mukarrari leases heritable and transferable, had acquired notoriety of such a character that it is not possible to conceive that the defendants held possession of the villages except under a claim by adverse possession claiming interest of a limited nature, namely, perpetual mukarrari. There have been a number of cases and the history of the litigation between the Ramgarh estate and the heirs and assigns of mukarraridars has become notorious so much so that it is not now thought necessary to repeat it in each case. It has, however, been sufficiently indicated in the evidence of Sheo Sahay Lal, which can be elucidated and made comprehensive by referring to the detailed account given by Woodroffe, J. He says that between the 26th November, 1864, and the 22nd of September, 1866, Raja Ramnath granted 644 istimrari leases, thus letting out a large portion of his zamindari in mukarrari istimrari. The Sadar Dewani Adalat, previous to that, had held that an istimrari mukarrari lease did not import heritable interest unless there were express words of inheritance, such as, ‘naslan bad naslan’ (generation after generation). Shortly after the first lease was granted it was held in the case of Manoranjan Singh v. Raja Leelanand Singh that the mukarrari istimrari interest there dealt with was hereditary. Raja Ramnath Singh died in 1866, and shortly after his posthumous son also died, and litigation then broke out between his widow Srimati Hira Kueri and Ram Narain Singh who belonged to a junior line of Tej Singh, the common ancestor. During this period in 1869 the High Court held in the case of Mussammat Lakhu Kowar v. Roy Hari Krishna Singh that a mukarrari istimrari grant there constituted a perpetual and hereditable interest. In 1871 a suit for resumption of one of the mukarraris was brought by Srimati Prem Kueri, mother of Raja Ramnath Singh. It was dismissed in March, 1872, on the ground that the words mukarrari istimrari in the patta conveyed a heritable interest. In 1873, after the death of Srimati Hira Koeri, the Court of Wards made over the estate to Ram Narain Singh. In 1875 Ram Narain Singh brought a suit for resumption against the mukarraridar named Amir Khan. This was dismissed, on the ground that the words mukarrari istimrari gave a heritable interest to the grantee. The decision was upheld by the High Court in 1877 when it was held that the words by themselves purported to give a perpetual and heritable tenure. This case is referred to by the witness Shiv Sahay Lal. Previous to the decision in this case the Judicial Committee disposed of the appeal of Manoranjan Singh v. Raja Lilanand Singh and held that whilst it was doubtful whether the words mukarrari istimrari meant permanent during the life of the person to whom they were granted or permanent as regards hereditary interest, yet that coupling these words with the usage proved in that case the tenures were, as the High Court held, hereditary. This, decision was followed by the High Court in Sheo Pershad Singh v. Kally Dass Singh. On appeal the Privy Council held that ‘mukarrari’ does not necessarily import perpetuity though it might do so [Bilasmom Dasi v. Raja Sheoprasad Singh]. In 1885 the Judicial Committee reviewed all the preceding decisions and held that the words mukarrari istimrari in a patta granting land do not themselves denote that the estate granted is an estate of inheritance. It was, however, also observed that it could not be said that such an estate could not be granted unless the words ‘ba farzandan’ or ‘naslan bad naslan’ or similar terms were used. There may be other terms, circumstances and conduct of the parties showing intention with sufficient certainty that the grant was to be perpetual [Toolshi Pershad Singh v. Raja Ram, Narain Singh]. This was followed in the case of Agin Bindh Upadhya v. Mohan Bikram, Shah. In 1899, in the case of Maharani Beni Pershad Koeri v. Dudhnath Roy, the decision in Toolshi Pershad Singh v. Raja Ram Naram Singh was followed. These three last-mentioned decisions are not concerned with the Ramgarh estate for Raja Ramnath Singh having lost Amir Khan's case in 1877 did not pursue his claim further by litigation, except in 1884 when a suit, which was instituted, was withdrawn alleging that the case could not be taken as a test case to the Privy Council. Raja Ramnath Singh died in 1899 and was succeeded by Raja Ramnarain Singh. He being encouraged by the decision of the Judicial Committee in Toolshi Pershad Singh's case asserted again by litigation his claim to resume the lands covered by these leases on the death of the grantees and he was successful. In the case of Narsingh Dayal Sahu v. Ramnarain Singh, it was held that a lease couched in the same terms as those in the present suit granted by Maharaja Ramnath Singh did not convey a perpetual hereditary grant. Sheo Sahay Singh says:

“The Raja was unsuccessful in his resumption suit against Amir Khan which was in 1934 or 1935 (1877). Then the Raja got a decree from the High Court in 1903, A.D, in his resumption suit against Narsingh Dayal Sahu and others. During the interval no resumption suit was brought because it was apprehended that the Raja would not succeed.”

In this state of litigation when the Raja was even from 1877 asserting his right to resume after the death of the original grantee and the heirs and assigns of the mukarraridars were on the other hand, asserting that the grant was of a permanent character, it is impossible to conceive that the Raja would recognize the heirs and assigns as tenants, or that the latter would agree to have the status of merely yearly tenants. It was well known and it is tacitly admitted by Shiv Sahay Lal in the words quoted above that the heirs and assigns were setting up a claim of permanent mukarrari in the leased villages. Again, it is pointed out by Woodroffe, J., that after Amir Khan's case in 1877, the deeds of transfer by the mukarraridars referred to the permanency of the grant. Thus it is that the deed of sale in the present case (Exhibit B) of 1879 in favour Sahay Singh, ancestor of the defendants, refers to the permanency of the grant. This shows that in the circumstances of the general litigation the mukarraridars and heirs and assigns were setting up permanent interests and not anything less than that and they would not consent to be yearly tenants. They therefore insisted upon having receipts in their names, thinking that such receipts would confer upon them the permanent mukarrari interest, whereas the landlord was loath to recognize the transfer and was willing to grant the defendants only marfatdari receipts thus keeping intact his right under the original mukarrari istimrari which he contended did not confer a permanent and heritable interest. Now, when the Privy Council decided that the words ‘istimrari mukarrari’ do not by themselves convey a permanent interest, but those words coupled with circumstances and conduct and usage might establish a clear intention of a permanent interest being created, the Chota Nagpur Banking Association set up a case of usage and conduct in support of its claim that permanent interest was acquired under the istimrari mukarrari deed. This plea was, however, overruled upon the finding that there was no evidence of any circumstance or conduct or usage as set up by the defendant. It is, however, clear that both the parties were trying to assert rights against each other, the Raja claiming to re-enter after the death of the lessees and the heirs and assigns of the mukarraridars claiming the right of holding as permanent mukarraridars, shaping their respective cases in the light of the decisions of Courts that were from time to time given. In the case of the Chota Nagpur Banking Association it was further held that the grant of receipts by the Raja's mortgagee, Jadunath Mukherjee, did not constitute any recognition of tenancy for the Raja was not concerned with the acts of the mortgagee or the mukarraridars and the Raja could not be said to have recognized the alleged heirs or their tenants unless he was aware of the fact and the holding over was with his express consent. In that case, as in the present case, therefore, the realization of rent decrees by mortgagee, Narsingh Dayal Sahu, between the years 1954 to 1958, Sambat, did not constitute any recognition of tenancy by the Raja. There, as in this case, has not been proved any express consent by the Raja of the holding over as tenants by the defendants. As in that case, so in the present case, it has not been shown nor is it likely that the lessor who has persistently refused to recognize any heirs of the mukarraridars had given express consent to their holding over. The suits referred to in the case of Ram Narain Singh v. Chota Nagpur Banking Association were brought within twelve years of the death of the original mukarraridars. This is admitted by witness Shiv Sahay Lal and the cases themselves show this, and therefore those suits were not barred. It was pointed out by Woodroffe, J., that if the heirs and assigns became tenants by recognition, which was not proved, notice was necessary. The Raja's claim is obviously time barred, but in order to bring his case within limitation, what the tenants had set up in the previous cases of recognition to defeat the Raja's claim to eject them without notice is now pleaded by the Raja in order to create a yearly tenancy and to bring the suit, after determination of the same by notice, under section 111(h) of the Transfer of Property Act read with Article 139 of the Limitation Act. As already shown, no recognition by receipt of rent has been established and this was not the plaintiff's claim. The notices (Exhibits A, B, C, D, E and F) show that they were treated as yearly tenants upon the ground that they were allowed tohold over. Such is the case in the plaint and in the evidence. The case set up is obviously due to the nation that mere assent to hold over will be sufficient to create a yearly tenancy under section 116 of the Transfer of Property Act and the principles underlying that section. It has been shown already that a mere assent in such a case is not sufficient to create a tenancy, still less a tenancy from year to year so as to prevent the defendants from taking advantage of the limitation running against the lessor from the death of the original lessees.

Reading the evidence in the light of the litigation disclosed in the evidence in the case, such as it is, and referred to above, and in the judgment of Woodroffe, J., referred to above, it is clear that the tenants claimed to hold adversely to the knowledge of the lessor the limited interest of a permanent mukarrari tenancy liable to pay rent to the landlord as is mentioned in the mukarrari deed which had become void. The payment of rent in these circumstances, as already shown, even if proved and it has not been proved in the present case, will not preclude the defendants from pleading adverse possession as set up by them. The authorities in which it has been held that it is open to a person to plead tenancy and in the alternative possession of a limited interest have been cited above. Of course the nature and effect of possession must depend upon the nature and extent of the right asserted by the overt conduct or express declaration of the person relying upon it [Ram Churn Raha Bukshee v. Mungul Sircar, Watson and Company v. Rani Shwent Sundari Debee Dinomoney Dabea v. Doorgapershad Mozoomdar, Maidin Saiba v. Nagapa, Luxumonarana Patit v. Moraba Ramkrishna and Thakore Fatesingji Dipsangji v. Bamanji Ardeshir Dalai]. In the last case it was observed: “The effect of acquiescence in the defendants' assertion of title by allowing him to remain in possession and accepting rent would not debar the tenant from raising the plea of adverse possession.

“Authorities show that a tenant in India is not precluded by an admission of tenancy from showing that the nature of tenancy asserted by him to the knowledge of the landlord has been for the period prescribed by the Limitation Act pro tanto adverse to the right to eject either at will or on notice given. The question then is not what was the right which actually existed at the beginning of the tenancy but what was the right which he has openly enjoyed to the knowledge of the owner or his representative for the time being. A manifest assertion by the tenant to the knowledge of the person representing the landlord's interest of a right inconsistent with that claimed by the landlord to treat him as a tenant-at-will or from year to year would be a disclaimer of the landlord's title under the ruling in Vivian v. Moat.” Relying upon the case of Gopal Rao v. Mahadeo Rao, it was observed that it is inconsistent with the decided cases to hold that a landlord, merely by receiving rent from his tenant, could preserve his right to other claims continuously denied by the tenant. The relationship of landlord and tenant might be continued by the admission of the parties, but such admission cannot create, preserve or revive undisputed conditions of its continuous rights in conflict with the claims openly asserted and not withdrawn by the tenant who is suffered to continue in possession. Their Lordships observe: “In this case it seems impossible to close one's eyes to the fact that adverse interest was openly asserted and so far enjoyed as to give full notice of the nature of the tenancy claimed.” No doubt, in that case the lease which turned out to be invalid purported to create a permanent mukarrari interest, whereas in the present case the mukarrari istimrari granted to the original mukarraridars conveyed only a life interest; yet the defendants, in the present case, claimed that the interest conveyed by the mukarrari istimrari lease was of a permanent character and in the sale deed taken by Sahay Singh such an interest is expressly asserted and the defendants expressly have been claiming throughout to hold under the sale deed as permanent mukarrari. By reason of the litigation referred to above and the circumstances and evidence in the case that claim had become notorious and was well-known to the plaintiff. Therefore, the principle enunciated in the cases already referred to applies to the present case. Under these circumstances section 139 of the Limitation Act has no application, and as held by their Lordships of the Judicial Committee in the case of Ramchunder Singh v. Madho Kumari the suit is governed by Article 144 of the Limitation Act, the defendants having made a definite assertion of an adverse right more than twelve years prior to the suit. The defendants never claimed to hold on any terms other than as permanent mukarraridars.

I would, therefore, hold in disagreement with the view of the learned Sub-ordinate Judge that the defendants had before the date of suit acquired a right to hold the mauzas in suit as permanent mukarraridars by prescription and adverse possession. I also hold that the defendants were not tenants from year to year and that the suit is barred by limitation.

The result is that Issue no. 3 is decided in favour of the plaintiff, and Issues nos. 2, 4 and 5 against the plaintiff and in favour of the defendants.

The result is that the decree of the Court below is set aside and the suit is dismissed. The appeal is allowed with costs throughout.

Macpherson, J.:— I agree.

Appeal allowed.