Kulwant Sahay, J.:— This is an appeal on behalf of the principal contesting defendants against the decree of the Subordinate Judge of Hazaribagh, dated the 25th June, 1921, whereby he decreed the plaintiff's suit for khas possession over certain villages which were granted to the ancestors of the defendants Nos. 1 to 5 in istamrari mokarrari grant by a predecessor of the plaintiff.

2. It appears that in the years 1864 to 1866 Maharaja Ramnath Singh, the then proprietor of the Ramgarh Estate granted a large number of villages in istamrari mokarrari leases to several persons. In course of time when the original grantees began to die, a question arose between the ancestors of the plaintiff, who is the present owner of the Ramgarh Estate and the heirs or assignees of the original mokarraridars 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 the assignees of the grantees alleged that the grants were permanent, heritable and transferable grants and the plaintiff's ancestors had no right of resumption. Some test cases were instituted and the controversy but wet the parties was finally set at rest by a decision of the Calcutta High Court in the case of Ram Narayan Singh v. Chota Nagpur Banking Association(1) wherein it was held that the grants did not create an estate of inheritance and were not permanent and heritable grants but merely life tenures and the plaintiff's ancestors had the right of resumption. Thereafter a large number of suits were instituted by the Ramgarh Estate against the heirs or assignees of the original mokarraridars for resumption of the grants and several of them have come up to this Court in appeal. The present suit is one of those resumption suits. In the present case the plaintiff's case as made in the plaint was that three villages Lemoia Sindurway, and Banderohua were granted under a mokarrari istamrari lease by Maharaja Ramnath Singh, the then owner of the Ramgarh Estate to two persons Tulshi Mahto and Lachman Mahton, under a patta dated Chait Sudi 9th, 1922 Sambat (13th April, 1865), that both the original grantees were dead and the plaintiff's right to re-enter accrued on the death of the last surviving grantee, that the defendants Nos. 1 to 37, who were heirs or assignees of the original grantees or either of them or of their heirs, continued in possession with the assent of the landlord as tenants from year to year, but that at the time of the preparation of the record of the rights they falsely asserted a title of permanent istamrari mokarraridars and in the settlement papers they were recorded as such. Thereupon notices to quit were issued on behalf of the plaintiff upon the persons in possession in September 1915, asking them to quit at the expiration of the Sambat year 1972. Similar notices were again issued in September 1917, requiring the persons in possession to quit at the expiration of the Sambat year 1974. As doubts were entertained as to the due service of these notices another set of notices were issued on the 1st of September, 1919; asking the defendants or their predecessors-in-interest to quit possession at the expiration of the Sambat year 1976 but as the defendants did not surrender possession, the plaintiff instituted the present suit and prayed for a decree for khas possession and mesne profits. The suit was instituted on 1st April 1920. Two sets of written statements were filed. One set was filed by the defendants Nos. 1 to 3, 11 to 16 and 19 to 22, and another set by the defendants Nos. 6 to 9. Defendants Nos. 1 to 3 and defendant No. 4 who died during the pendency of the suit and in whose place the defendant No. 5 was substituted are the heirs of the original grantees. Defendants Nos. 11 to 16 and 19 to 22 claim a darmokarrari interest under the defendants Nos. 1 to 3 to the extent of 8 annas share in Bunderohua and 6 annas in Lemoia. Their defence was that the village in dispute formed a permanent, heritable and transferable interest of the original grantees, and that after their death the heirs and assignees have been in possession as permanent mokarraridars and darmokarraridars, that after the death of the original mokarraridars the defendants did not take any yearly settlement as tenants from the plaintiff or his ancestor, that in the Sambat year 1958, after the decisions of one of the test cases brought by the Estate against one Narsingh Dayal Sahu(2) the defendant No. 2 Narhu Mahto went to the grandfather of the present plaintiff and asked him to grant receipt in his own name and in the name of the other heirs, but the said Raja having declined to grant such receipts, the defendants stopped paying the rent and have since been in possession without payment of rent and adversely to the plaintiff and his ancestors and that, therefore, the suit is burred by limitation. The defendants Nos. 6 to 9 set up an ancestral khairat lakberaj title in respect of 481 acres of land in mouza Lemoia under a grant from the ancestons of the present plaintiff. They denied their liability to pay any rent or to give up possession on the death of the original mokarraridar. Various issues were raised in the Court below and the learned Subordinate Judge found all the issue against the defendants other than the defendants Nos. 6 to 9 and made a decree for khas possession and mesne profits against them. As regards defendants Nos. 6 to 9 the learned Subordinate Judge found that they were in possession of 481 acres in Lemoia under lakheraj grant from the ancestors of the plaintiff and that they could not be ejected and he accordingly dismissed the suit against them.

3. The principal defendants have come up in appeal to this Court and the principal point argued in their behalf is the question of limitation and adverse possession.

4. In the plaint the plaintiff alleged that the mokarrari grant was made by Raja Ramnath Singh but at the trial the evidence given was that these villages along with other villages were held under a khorposh grant by Rani Hiranath Kumri, who was the wife of Raja Ramnath Singh the then proprietor of the Ramgarh Estate, and that the mokarrari lease in question was granted by Rani Hiranath Kumri with the consent of Raja Ramnath Singh. The fact, however, that the mokarrari grant was made by Rani Hiranath Kumri will not affect the decision of the case as the parties have accepted the position as if the grant had been made by Raja Ramnath Singh himself.

5. It has not been contended before us that the mokarrari grant created a permanent and heritable interest in the grantees. The finding of the learned Subordinate Judge on the Issue No. 1 as to what was the nature of the tenure in suit and whether it was only a life estate has not been challenged before us. The learned Subordinate Judge has found that having regard to the decision of the Calcutta High Court in the case of Ram Narayan Singh v. Chota Nagpur Banking Association there can be no question that the interest created under the istamrari mokarrari deed was a mere life estate and not a permanent and heritable tenure. The mokarrari dead in the present case is the same terms as the deed in the case referred to above; and the learned counsel for the appellant has accepted the position in this appeal that the estate created under the deed was a mere life estate in favour of the grantees. It has been contended before us that Lachman Mahton, one of the grantees died in the year 1923, Sambat (1866) and Tulsi Mahton the surviving grantee died in the year 1940 Sambat (1883), and that, therefore, the right of the plaintiff to resume accrued upon his own allegations on the death of the last surviving grantee in the year 1940 Sambat, and that since then the defendants here been in adverse possession and the plaintiff's claim is barred by the Statute of Limitation. On the other hand, it has been argued on behalf of the plaintiff that after the death of the last surviving grantee the status of the heirs and assignees who continued in possession became one of tenants by sufferance but, that, as the landlord gave his assent to the continuance of the tenancy by receipt of rent, the tenancy was converted into one from year to year and that the plaintiff's right to recover direct possession accrued only on the determination of this yearly tenancy by the notice to quit which was given for the last time on the 1st of September, 1919, and that the suit having been brought on the 1st of April, 1920, the claim was not barred by limitation.

6. In order to determine which of these two contentions is correct, it is necessary to see what was the legal position of the heirs of the original grantees after the death of the last surviving grantee. The learned Subordinate Judge has held that they were tenants by sufferance or tenants from year to year after the determination of the lease on the death of the last surviving grantee. He says that taking it for granted that they, the heirs, were in the beginning mere tenants by sufferance, the question for consideration is whether they continued to remain all along in possession as tenants by suffienance. He refers to the decision of the Calcutta High Court in the case of Ram Chandra Singh v. Bhikhambir Singh(3) that a tenancy by sufferance would not by itself make the position of the holder rightful so as to prevent limitation from running but he says that if the landlord dots anything to indicate his assent to the continuation of the tenancy that would itself be sufficient to convert the tenancy by suffieance into a tenancy from year to year. He then finds that such assent of the landlord was given in the present case. He infers assent from the fact that the heirs used to get morfatdari receipts from the Raja for rents paid in respect of the disputed villages up to the year 1951 or Sambat. He is of opinion that the marfatdari receipts amounted to a tacit assent on the part of the landlord to the continuance of the tenancy, and be concludes therefrom that the status of the defendants 1 to 5 was by reason of the acceptance of rent and grant of marfotdari receipts converted into that of tenancy from year to year. Having found that the defendants became yearly tenants on account of the assent of the landlord, he proceeded to enquire when that yearly tenancy was determined and he held that this tenancy was determined by service of the, notice to quit in the year 2919 and not before that, and that the present suit being brought within 12 years from that date, no question of limitation arose.

7. Now, having regard to the circumstances of the case I am of opinion that the learned Subordinate Judge has misconceived the legal position of the parties. In order to determine the status of the defendants in the present case one has to keep in mind the previous history of the litigation. As was pointed out in the case of Ram Narayan Singh v. Chota Nagpur Banking Association especially in the judgment of Woodroffe, J., there has been a long course of litigation going on between the Ramgarh estate and the heirs or assignees of the grantees under the large number of mokarrari grants created by the Raja in the year 1864-1865; there were more than 600 such grants created then. One of the earliest attempts made by the Raja to take possession of the property granted under one of these mokarrari grants was in the year 1875 when Raja Rani Narayan Singh brought a suit for resumption against Amir Khan. This suit was dismissed on the ground that the interest created by the grant was a heritable interest and not a mere life estate. The decision of the Subordinate Judge in that case was upheld by the High Court in 1877. There were various other cases in which sometimes the Court held that the estate created by the mokarrari istmarari grants was a life estate, and ??? that such estate was a permanent and heritable estate. In 1885 the Judicial Committee of the Privy Council reviewed all the previous decisions and held that a mokarari istamrari grant did not by itself denote that the estate granted was an estate of inheritance. In was, however, observed that it could not be said that such an estate could not be granted unless the words “ba farzondan” or “naslan bad naslan” or similar terms were used. There may be other terms, circumstances or conduct of parties showing the intention with sufficient certainty that the grant was to be perpetual [see Toolshi Prashad Singh v. Ramnarain Singh(4).] There were other cases relating to similar grants after the decision of the Privy Council which it is not necessary to state in detail here. It is sufficient to mention that in the case of Narsingh Dayal Sahu v. Ram Narayan Singh referred to above it was held that the lease in the same terms as those in the present suit granted by Raja Ramnath Singh did not convey a perpetual and hereditary grant. Now, this decision of the High Court in the case of Narsingh Dayal Sahu was given in 1903. The original lessees in the present case had died before this date and suits were being brought or were in contemplation by the Raja at the time of the death of the grantees in the present case to contest the nature of the grant. The Ramgarh estate consistently and uniformly held out that the estate granted under the istamrari mokarrari deeds was only a life estate to enure during the life time of the grantees. The heirs of the grantees equally consistently insisted that the grants were permanent and heritable grants. In this state of things the last surviving grantee in the present case died and his heirs, the defendants in the present case, continued in possession. The question as to what was the status of the heirs after the death of the original grantee was not firmly determined and was still a subject of controversy. It has been contended on behalf of the plaintiff and the contention has been accepted by the Subordinate Judge, that the position of the heirs was the same as that of a lessee holding over after the determination of a lease under the previsions of Section 116 of the Transfer of Property Act. This is an untenable position S. 116 does not contemplate the position of the heirs or assignees of the original lessee. It contemplates the position of the lessee himself after the determination of the lease and it is only in the case of the lessee of a property who remains in possession thereof after the determination of the lease granted to him and the lessor for his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his, namely, the lessee's continuing in possession, that the lease is in the absence of an agreement to the contrary renewed from year to year or from month to month according to the purposes for which the property is leased. S. 116 does not contemplate holding over by the heirs of the original lessee and, therefore, the heirs did not by continuing in possession acquire the status of a tenant holding over after the determination of the lease. The learned Subordinate Judge treats the position of the heirs as if it was the same as that of the lessee's continuing in possession after the determination of the lease and that therefore after the determination of such lease the heirs became tenants by sufferance and that such tenancy by sufferance could be converted into a tenancy from year to year by assent of the landlord. The position in the present case is that after the death of the original grantee under the mokarriari grant the heirs in possession were in possession without any right whatsoever, for the interest created by the grant became extinct on the death of the last surviving grantee, and their possession was that of trespassers and it was adverse to the landlord.

8. Reliance has been placed upon the fact that the defendants admit that after the death of the original grantee they continued to pay rent to the landlord an: the landlord granted marfatdari receipts to them. New, such payment of rent by the defendants was in no way inconsistent with their claim of adverse possession. What they were claiming was the status of permanent mokairaridars. As such permanent mokarraridars they were liable to pay rent and payment of rent under such circumstance would not in any way derogate from their position of being in adverse possession. The adverse possession claimed by the defendants was of a limited nature. The possession was not adverse to the proprietors absolutely. That adverse possession of limited nature can be claimed by a person in possession, is recognized in a number of decided cases and is settled by authorities. It is, therefore, evident that the fact of the payment of rent by the defendants would not in any way affect their position of being in possession adversely to the landlord.

9. Then the fact of the grant of the marfatdari receipts by the landlord is relied upon. These marfatdari receipts, as has been stated by the Subordinate Judge, are receipts granted by the landlord in the name of the original tenants but stating that the rents had been received through the defendants. The landlord by accepting the rent and granting these marfatdari receipts did not give his assent to the holding over by the defendants as yearly-tenants. There can-be no relationship of landlord and yearly-tenants between the parties in the present case, because one party was claiming a permanent right and the other was not willing to accept that claim and asserting that the other party had no right whatsoever to remain in possession. Therefore there is no question of holding over or of the defendants being tenants by sufferance after the death of the original grantee, and of such tenancy by sufferance being converted into tenancy from year to year by assent of the landlord. The position merely is that of a person in possession adversely to the landlord claiming an adverse interest of a limited nature, namely that of a permanent tenure-holder. I am, therefore, of opinion that the learned Subordinate Judge was wrong in holding that the question of limitation did not arise in the present case. If the position of the defendants was that of persons in adverse possession, the claim of the plaintiff to recover possession would be barred after 12 years under Article 144 of the Limitation Act. The fact that the defendants were claiming title of adverse possession is clearly alleged in the written-statement. Evidence of open assertion of adverse possession to the knowledge of the landlord is given in the present case. The fact that after the decision in the case of Narsingh Dayal Sahu Stated above, wherein it was held that the mokarrari grant created only a life estate, the defendants went to the Raja at Padma and demanded receipts in their own names, and on refusal of such receipts being granted, stopped payment of rent, is clearly an assertion of adverse possession of a limited nature. Rents had so long been paid by the defendants in the hope that their right as permanent tenure-holders would be declared or recognized, but once the decision was given by the Court in the case or Narsingh Dayal Sahu the tenants wanted a definite acceptance by the landlord in the shape of grant of receipts in their own names and not marfatdari receipts, and this having been refused they declined to pay rent. There can be no doubt that this was a clear assertion of an adverse title. Then again there is evidence that after the defendants stopped payment of rent the Raja made attempts to take direct possession of the villages and to make direct collection of rent from the raiyats and, indeed, he succeeded in collecting some rent from some of the tenants in one of the villages. The defendants, however, resisted the claim of the Raja and prevented him from taking direct possession of the villages. This is another clear assertion of adverse possession. Now, the right of the Raja to take direct possession accrued on the death of the last surviving grantee. His right to bring an action in ejectment against the defendants was extinguished after the lapse of years from the death of the original grantee. The suit having been brought more than 12 years after such date is clearly barred by limitation. The learned Subordinate Judge is of opinion that the evidence adduced in the case is not sufficient to prove an assertion of adverse interest. I am unable to agree with him and I am of opinion that the evidence is sufficient to prove such assertion.

10. The question raised in this appeal is similar to that raised in the case of Ram Rachya Singh v. Kumar Kamakhya Narain Singh(5) which was an appeal by the assignees from another mokarraridar under a similar istammarari rnokarrari grant against the present plaintiff, and I agree with the decision of my Lord the Acting Chief Justice in that case.

11. I am, therefore, of opinion that the decision of the learned Subordinate Judge in so far as he decrees the plaintiff's suit for possession against the defendants other than the defendants 6 to 9 must be set aside, and the plaintiff's suit dismissed in toto. The appeal therefore must be allowed with costs here and in the Court below.

12. Jwala Prasad, A.C.J:— I agree.

13. Appeal allowed.