RAHIM BUX PRAMANIK Vs. OSMAN GANI SHEIKH

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arise out of a suit commenced by him to recover khas possession of a plot of land measuring about 5 cottas on establishment of his title to the same. The disputed land, according to the plaintiff, appertains to C.S. plot No. 149 recorded in Khatian No. 58 of Mouza Gopegram. C.S. Plot No. 149 along with Plot No. 150 were comprised in a tenancy held by one Nagendra Nath Sen under pro forma defendant A Kiran Chandra Chakravarti at an annual rental of Rs. 10 and odd annas. Nagendra enjoyed the land of C.S. Dag No. 149 in khas while Dag No. 150 was sublet by, him to the plaintiff and two other persons. In 1935, Nagendra surrendered the tenancy to his landlord Kiran with the previous consent of the sub tenants under Section 86, Ben. Ten. Act, and on 22 July, 1936, the plaintiff took settlement of both the plots of land from Kiran at a rental of Rs. 9 and odd annas a year. The plaintiff avers that on 7 March 1938, defendants 1 and 2 who occupied a contiguous property dispossessed the plaintiff from the disputed strip of land by erecting a hut on the same. This led to the institution of the present suit. The defence of defendants 1 and 2 was substantially of a twofold character. The first and the main contention was that the land in suit did not appertain to C.S. Dag No. 149, but was a part of Plot No. 145 which belonged to the defendants. Alternatively, it was contended that the defendants acquired a good title to the property by adverse possession.

(2.) The trial Court negatived both the pleas and decreed the plaintiff's suit. On appeal, the judgment was reversed. The learned District Judge who heard the appeal concurred with the trial Court in holding that the land in suit did appertain to plot No. 149 as alleged by the plaintiff, and not to C.S. Plot No. 145, but he dismissed the plaintiff's suit on the ground that the plaintiff's title was extinguished by adverse possession of the defendants which commenced from 1925. It is the propriety of, this decision that has been challenged before us in this appeal. The controversy, so far as this appeal is concerned, centres round one short point. We are bound to accept the finding recorded by the lower appellate Court that defendants 1 and 2 were in possession of the property since 1925. The only question for our determination is as to when the possession of the defendants became adverse to the plaintiff.

(3.) The contention raised on behalf of the plaintiff-appellant is that at the time when the defendants encroached upon the disputed property, it was in possession of Nagendra as a tenant under the pro forma defendant 4. That possession, though it might be adverse against Nagendra could not be adverse against the superior landlord till the holding was surrendered by Nagendra in 1935. As against the plaintiff, who derived his title from pro forma defendant 4, limitation would begin to run from 1935, and as twelve years had not yet run out, the plaintiff's suit, it is said, was not barred by limitation. Now, it cannot be disputed as a general proposition of law, that adverse possession against the tenant is not adverse against the landlord during the continuance of the lease. As long as the lease subsists, time does not run in favour of a third party who has dispossessed the lessee where the lessor had no immediate right of possession. The lessor's right to sue accrues only if the rent received by him is intercepted by the trespasser: vide, Davies V/s. Kazee Abdool ( 67) 8 W.R. 55, Woomesh Chunder V/s. Raj Narain Roy (?68) 10 W.R. 15, Gunga Kumar Hitter V/s. Ashutosh Gossami ( 96) 23 Cal. 863 and Hajra Sardara V/s. Kunja Behari Nag 5 A.I.R. 1918 Cal. 584.