GOPALA KRISHNA JANA Vs. LAKHIRAM SARDAR

JUDGEMENT

(1.) This is an appeal to the Court under Clause 15 of the Letters Patent from a judgment of Mr. Justice Digamber Chaterjee, who set aside the decree of the lower Appellate Court and sent back the case for decision in the light of the observations contained in his judgment.

(2.) The suit is one for Wins-possession of lands, and the lands, in respect of which this relief is sought, have been treated as so situate and circumstanced as to come within the doctrine of encroachment; and, without questioning the propriety of this view, I assume that this is a case in which that doctrine would properly apply. The defendant, undoubtedly, is a tenant of the plaintiff in respect of the other property, and the question is whether the plaintiff, the landlord, can recover khas-possession of the laud in suit which was not included originally in the lease but is now treated as the subject of an encroachment by the defendant as a tenant of the plaintiff. The plaintiff s claim was upheld in both the lower Courts, on the ground that the defendant was not entitled to assert his position as a tenant of the plaintiff. Mr. Justice Chatterjee dissented from this view. He thought that the facts were such that it might be a reasonable view that the defendant had, by virtue of the statute of Limitation, acquired a right which entitled him to claim to hold the land as a tenant of the plaintiff, and so entitled him to resist the claim for khas-possession. The law as to encroachments is well settled; while a tenant is bound to treat that, which is an encroachment, as held by him under his landlord, the landlord is not bound to treat the land on which Iris tenant encroaches as held under a tenancy. Therefore, it may be that in appropriate circumstances a landlord can recover against his tenant the land on which, the tenant has encroached. There is a limit to that right, for if the tenant has been in possession of the land for that, which for brevity I may call the statutory period and the landlord repudiates the encroachment, it becomes a question whether or not the tenant has gained an interest that would be a bar to his landlord s claim for possession. In this case there is a finding of the first Court, though not of the lower Appellate Court, that the defendant has been in possession of the land in question for a period of twelve years and upwards. That period of possession complies with one of the conditions necessary to establish a right by adverse possession. The other condition is that the possession should be adverse, What is asserted by the defendant is not that he has acquired by adverse possession an absolute interest, but only a tenancy right in this property. As I read the judgment of the lower Appellate Court, it has failed to consider whether, though the defendant may not have asserted an absolute title to the property, he did not assert a title to the property as a tenant. Under Article 144 of the Limitation Act, there may be adverse possession not only of immoveable property, but of any interest therein, and it appears to me that it may properly be contended that, in the circumstances of this case, there was an adverse possession of the limited interest which the defendant claims, that is to say, a tenancy commensurate with that in the admitted lease between the parties. That, as I have said, is an aspect of the case which has not been investigated, and I think it should be. 2. The result then is that we agree with the decree passed by Mr. Justice Chatterjee and we must dismiss this appeal with costs. N. Chatterjea, J.

(3.) I agree.