The Judgment of the Court was as follows:—

The suit out of which this appeal has arisen was one for declaration of title and recovery of possession with mesne profits. The claim for mesne profits was allowed to be withdrawn with liberty to institute a separate suit therefor. The prayers for declaration of title and recovery of possession were granted by the decree of the trial Court which has been upheld on appeal by the District Judge. The Defendants have then preferred this appeal.

The lands in suit together with other lands constituted the raiyati holding of one Ramratan Sil. Ramratan had a son named Koilash (who died during the life-time of Ramratan leaving a widow named Nityabasi and a daughter named Brajabasi, who married one Bansi), and a daughter named Tirthabasi (who had two sons, Monmohan and Sonatan). The Defendant No. 1 alleging that she had purchased the suit lands from Koilash's heirs dispossessed Monmohan and Sonatan in 1323 B.S The Plaintiffs purchased the lands from Monmohan and Sanatan and instituted a suit for declaration of title and possession to which the Defendant No. 1 was made a party Defendant. It was suit No. 247 of 1918 and it finally ended in Plaintiff's favour on the 21st July 1920. There were two execution proceedings. The first one proved abortive, the peon having reported that the lands were not in possession of the Defendant No. 1 but of the Defendants Nos. 4 to 6 who are the sons and step-son of the Defendant No. 1. The second one terminated on the 4th November 1922, when delivery of possession was made in favour of the Plaintiffs as against the Defendant No. 1. The Defendants Nos. 2 and 3 are the sons of the brother of the Defendant No. 1's deceased husband. The Plaintiffs' case was that they obtained actual possession through Court on the 4th November 1922, and took the paddy crops that were standing on the land at the time, that they thereafter sowed kalai on the lands which were destroyed by the Defendant's cattle on the 5th February 1923, that they thereafter sowed til seeds on the land on the 7th and 8th February 1923, but on the last-mentioned date the Defendants plougled up the lands and destroyed the seeds. The Plaintiffs instituted a criminal case which resulted in an acquittal of the accused who were made Defendants Nos. 7 and 8 in the present suit. The suit was instituted on the 3rd February 1925.

The Defendants Nos. 2 to 6 who have preferred this appeal were the contesting Defendants. Apart from the defences on the merits they pleaded that they were in possession as landlords since 1323, and so the Plaintiffs' claim is barred by the special rule of two years' limitation.

The first contention that has been urged on behalf of the Appellants is that the findings arrived at by the Courts below in order to save the suit from the bar of 2 years' rule of limitation are not sufficient. Both the Courts below appear to have found it proved that the Plaintiffs obtained actual possession of the lands by the delivery of possession made by the Court on the 4th November 1922. The trial Court proceeded to observe that there being no evidence to show that the Defendants were in possession between that day and the 6th February 1923, i.e, prior to the sowing of til crops by the Plaintiffs, the latter must be presumed to have been in possession during this period. Now, there is no such presumption in law in respect of land which is capable of being possessed by exercise of acts of possession; and to the extent that the trial Court relied on the presumption it was not correct. The District Judge, however, has found, on a consideration of the probabilities of the case, that the Plaintiffs held on the possession that they obtained on the 4th November 1922 and the story of their growing kalai and til and of the same being destroyed and of the Plaintiffs being dispossessed before the 7th and 8th of February 1923 was true. This portion of the judgment of the learned District Judge is not very happily worded, but the effect of what he has said is not open to any serious doubt. In our opinion the findings are sufficient.

The next argument that has been advanced on behalf of the Appellants is that the question of the Plaintiffs' title has not been considered by the learned District Judge. On the question of title, the Munsif observed that it was “practically admitted” that Monmohan and Sonatan, the Plaintiffs' vendors were the legal heirs of Ramratan, that the sale was binding on both of them, and that the decree in suit No. 247 of 1918 operated as res judicata as against the Defendant No. 1 and Monmohan and Sonatan. The District Judge has recorded some observations which indicate that he was inclined to the view that the interest of the Defendant No. 1 is in reality identical with that of the Defendants Nos. 2 to 6, and it is the same battle which was once fought by the Defendant No. 1 that is being fought over again by the Defendants Nos. 2 to 6. The circumstances may not be sufficient to conclude the Defendants Nos. 2 to 6 by any principle of estoppel or res judicata, but at the same time examining the materials on the record one finds it extremely difficult to make out whether the Defendants Nos. 2 to 6 have set up any title in themselves as against or in conflict with the title of the Defendant No. 1, and in the circumstances we think that what the Plaintiffs have proved is sufficient to establish that they have acquired the interest of Ramratan to the lands in suit by their purchase from Monmohan and Sonatan. The Appellants also, as we understand them, do not seek to re-open this part of the decision, but the grievance that is made on their behalf is that the Plaintiffs as purchasers of a non-transfer-able occupancy holding acquired no interest as against them, they being co-sharer landlords. Now the Plaintiffs' case is that the lands formed only a part of the holding and did not constitute an entire holding, and the Appellants never put the contention forward before the trial Court in the form of an issue that might be adjudicated upon. There was a ground being ground No. 8 in the memorandum of appeal before the lower Appellate Court which may be taken to cover this contention; but it does not appear that it was pressed. At this late stage they cannot be permitted to raise a contention which would necessitate an investigation into disputed facts.

The last contention that has been urged on behalf of the Appellants is that they having dispossessed the Plaintiffs' vendors in 1323, and no suit having been brought against them within 2 years from that dispossession, the title of the Plaintiffs' vendors as also of the Plaintiffs was extinguished by virtue of sec. 28 of the Limitation Act. The matter was canvassed in the trial Court which disposed of it in these words: “Admittedly their possession, if any, began in 1323, so there can be no question of general limitation in this case. As regards special limitation, it must be stated here that possession by a landlord for over 2 years gives him no title though it bars the tenant's right to recover possession and if by chance, the tenant actually gets possession, a fresh period of limitation starts from that point unless the tenant's title was completely extinguished by adverse possession for over 12 years prior to dispossession. In this view of the case it is quite immaterial in this suit as to whether the Defendant No. 1 possessed the land or the Defendants Nos. 2 to 6 prior to the Plaintiffs taking delivery of possession through Court.” In our opinion this is not a correct view of the law. Under the law of limitation as it stood before the statute of 1859, the Privy Council enunciated the principle in the case of Ganga Gobinda Mandal v. The Collector of the 24-Parganas (1) in these words: “As between private owners contesting inter se the title to the lands, the law has established a limitation of twelve years; after that time, it declares not merely that the remedy is barred, but the title is extinct in favour of the possessor.” The principle of that decision was frequently applied to cases governed by Act XIV of 1859, and Markby, J., in the case of Brindaban Chandra Roy v. Tara Chand Bandopadhaya, dealing with a case under that Act, observed: “It also appears to me to be the accepted doctrine in our Courts that, if a party who has been 12 years out of possession, and whose suit is therefore barred, should again get into possession he is not (to use an English phrase) remitted to his old title; our Courts adopting as pointed out by Sir Lawrence Peel in Shib Chundar v. Shib Kissen(3) the English rule that there is no remitter to a right for which the party had no remedy by action at all.” This principle was first introduced by the Indian Legislature in sec. 29 of the Limitation Act IX of 1871 which corresponds to sec. 28 of the present Act. There is considerable authority for the view that sec. 28 of the Act lays down a rule of substantive Law [see Parmanand v. Sahib Ali(4)]. It has also been held that even in cases to which the Indian Limitation Act by its terms would not apply, the principle of the section would still be applicable. In the case of Dalip Rai v. Deoki Rai in which a tenant had failed to apply under the North-Western Provinces Rent Act, 1881 for the recovery of the occupancy of land of which he had been wrongfully dispossessed within the prescribed period, it was held that this failure had the effect not only of barring the tenant's remedy but of extinguishing the tenant's right to the occupancy of the land. In this case Stratchey, C.J, observed: “The cases however, so far assist us that they establish, first that a provision as to limitation which in terms merely bars the remedy may have the further effect of extinguishing the right, and secondly, that as regards the possession and dispossession of immoveable property or an interest therein, the latter effect generally follows. If this view is correct the presumption appears to be that on the lapse of the six months' period prescribed by sec. 96(e) of the Rent Act, the Defendant's right to the occupancy of the land in suit was extinguished and that the possession which he afterwards forcibly obtained was not that of a tenant who could only be ejected through a Revenue Court but that of a trespasser who might be ejected through a Civil Court. If on the other hand, this view is not correct the result would seem to be that there is no limit of time within which the Defendant might not forcibly re-occupy the land and assert the continuance of his tenancy. Such a state of things would lead to great insecurity in the occupancy of land by tenants holding under the landholder in good faith and in ignorance of the dispossessed tenant's claim, and to the substitution of irregular and violent methods of recovering possession for the method which the legislature has provided for a dispossessed tenant's benefit.” So far as Art. 3 of Sch. III of the Bengal Tenancy Act is concerned there is authority for the view that where a landlord keeps a raiyat out of possession of his holding for the period specified in that article the raiya't title in the holding is extinguished by adverse possession on general principles, if not under sec. 28 of the Limitation Act. [Nanda Kumar Dey v. Ajodhya Sahu(6)]. The view taken by the learned Munsif therefore is not correct. It follows therefore that matters could not be permitted to be left at the point at which the learned Munsif purported to leave them. The learned District Judge does not appear to have considered the question at all. Whether he was expressly invited to deal with the matter is not at all clear, but there is a ground in the memorandum of appeal, being ground No. 6, which directly raises the question.

It would therefore be necessary to consider whether the case should be sent back to the lower Appellate Court in order to deal with the question whether the Defendants Nos. 2 to 6 were in possession of the lands in suit after dispossessing the Plaintiffs or their vendors, for a period of 2 years prior to the 4th November 1922. It appears that there are certain findings in the judgment of the District Judge which have a good deal of bearing on this question. In the first place there is the fact that of the five Defendants Nos. 2 to 6, three are the sons and two are the nephews of the Defendant No. 1. The District Judge has found that it has not been shown that the interest of these Defendants was not identical with that of the Defendant No. 1. He appears also to have found that the story of the Defendants Nos. 2 to 6 having been in possession was not credible, because he says thus: “The failure to prove that the interest of the mother and the rest of the Defendants are divergent seems to me to be fatal to the theory of possession set up by the contestants. If anything further were needed, it would be found in para. 7 of the Written Statement, Ext. 2, in the previous suit, where Taramoni is made to say that there is litigation between Plaintiffs and Defendants Nos. 2 to 6 that because she had purchased the property, the Plaintiffs had taken a kobala from Monmohan and Sonatan. She has missed the opportunity of saying that Defendants Nos. 2 to 6 were in possession then, and there is no reason why the mother should hide the true state of things as they now, allege, namely, the possession at that time of her sons who were no parties.” The learned District Judge has also found that the plea of the Defendants Nos. 2 to 6 to have been in possession for 8 or 9 years is untenable. In the face of these findings we are not satisfied that any useful purpose would be served by making an order for remand, and we think that we may safely take the aforesaid findings as implying that the Defendants Nos. 2 to 6 have failed to show that they had dispossessed the Plaintiffs' vendors or were in possession for the requisite period.

We accordingly dismiss the appeal with costs.

P.C