R.C. Mitter, J.@mdashThe Plaintiff who is the Respondent before me instituted the suit against the Appellants and others for recovery of arrears of rent and for imposition of additional rent for the lands in the possession of the Defendants in excess of the lands for which they had hitherto been paying rent. The taluk of the Defendants, named Jasobant Sarkar, was created before the permanent settlement of Touzi No. 3846 of the Bakarganj; Collectorate. Persons whom the Plaintiff represents purchased the said Touzi at a sale held by the Collector for realising arrears of revenue on the 25th March, 1897. The quinquennial papers show that the said taluk comprised an area of 10 cottas only for which annas 8 was the rent payable. Later on, the proprietors of Touzi No. 3846 recovered a decree against the Defendants in a suit instituted by them in 1925 at the rate of Rs. 5-5-4 per year on the basis that the area of the taluk was 11 bighas. The Plaintiff has now instituted the suit claiming to have additional rent assessed on the footing that the area of the taluk is 307 bighas. It appears that the Defendants'' predecessors and other tenure-holders under the proprietors of Touzi No. 3846 encroached upon large parcels of land belonging to the revenue-paying estates of other adjoining proprietors. After their purchase at the aforesaid revenue sale, the Proprietors of Touzi NO. 3846 instituted a suit for possession against the predecessors of the Defendants. They claimed in that suit possession of all the lands in the possession of the then Defendants on the footing that they appertain to taluk (sic) was a taluk created after the Permanent Settlement. It was found in that suit that the said taluk was created before the Permanent Settlement and the talukdars could not be evicted. It was also held that the purchasers got by their purchase at the Collector''s sale only the lands which had been included in Touzi No. 3846 at the time of the Permanent Settlement [Baikuntha Nath Rai Chaudhuri v. Basanta Kumari Dassi 23 C. L. J. 151 (1915)]. Having failed in their attempt to get khas possession, an attempt is being now made on behalf of the representatives of the said purchasers to have a very substantial increase in the rent.
2. The Defendants raised many defences, but the one material to the decision of this appeal which is only limited to the claim of the Plaintiff for additional rent is that a good portion of the lands in suit is outside the Plaintiff''s estate. The further defence that the excess lands are being held by them as appertaining to other taluks held under the proprietors of other adjoining estate has failed. It has been found that only 74 acres out of the lands encroached upon by the Defendants appertain to the Plaintiff''s revenue-paying estates and the rest appertain to other estates--the total encroachment being found to be 307 bighas. The learned Subordinate Judge found that the Plaintiff was entitled to additional vent on an area of 296 bighas (307 bighas less 11 bighas) and made the assessment at the rate of annas eight per bighas.
3. The Defendents preferred an (sic) appertain to Touzi No. 3846. The learned District Judge agreed with the learned Subordinate Judge and held that the Plaintiff is entitled to have additional rent assessed on this area also.
4. Before me an attempt was made by the Defendants to re-open the question as to whether the Plaintiff was entitled to have additional rent assessed on 74 acres of land found to be in the Plaintiff''s estate. Having regard to the fact that the said part of the case had been abandoned before the learned District Judge, I did not allow the said point to be agitated before me. The appeal accordingly has been confined to the area found to be outside the Plaintiff''s estate.
5. There is no express finding that the Defendants have acquired title to these lands by adverse possession against the rightful owners, but the judgments proceed on the basis that they have acquired, such title. From the facts also it can be inferred that the Defendants had acquired such a title at the date of the suit. There can be no question that if a tenant encroaches upon the lands of other persons and acquires title to them by adverse possession, he acquires it prima facie for the ultimate benefit of his landlord, unless he had expressed a clear intention to hold it for his own benefit only. There is no evidence in this case that the Defendants had expressed such an intention. But this, principle in my judgment would not entitle the landlord to claim additional rent for such lands. The true (sic) principal is that if (sic)in any way, the (sic)entitle to take pos(sic) the lands originally (sic) but also of the (sic) and the tenant would not be entitled to retain them. The cases of Naddyarchand v. Meajan I. L. R. 10 Cal. 820 (1884) and Prohlad Teor v. Kedarnath I. L. R. 25 Cal. 302 (1897) cited before me and before the lower Courts were cases of recovery of possession of the encroached lands by the landlord. Esubai v. Damodar I. L. R. 16 Bom 552 (1891) was a case of encroachment by the tenant on the lands of his landlord. At the tenant''s suit brought against the landlord for possession during the subsistency of the lease, it was held that the encroachment was for the benefit of the landlord and not for the exclusive benefit of the tenant, and had become added to demised premises. In Goordas Roy v. Issur Chandra Bose 22 W. R. 246 (1874) the landlord instituted a suit for assessment of rent on lands not originally included in: the tenancy but encroached upon, the lands being his own khas lands. His claim was allowed on the principle that the lands must be taken as added to his tenure. In such a case, e.g., where the encroached lands are the khas lands of the landlord, there is a divergence of opinion as to whether the encroached lands form a separate tenancy or become a part and parcel of the original tenancy. Banerjee and Stevens, JJ., expressed the opinion that they would form a separate tenancy and the landlord''s right to assess rent on them would be based not on sec. 52 of the Bengal Tenancy Act but on general principles. [Khondkar Abdul Hamid v. Mohini Kanta 4 C. W. N. 508 (1900). Sharfuddin and Coxe, JJ., followed Khondkar Abdul Hamid''s case 4 C. W. N. 508 (1900) with great reluctance [Abdul Hakim v. Rajendra Narayan 13 C. W. N. 635 (1909)]. But there is no case in which the landlord''s claim for additional rent has been allowed when the encroached lands belong not to him, but to other persons. According to well-established principles, the moment the tenant encroached upon the lands of persons other than of his landlord, the encroachment enures to the ultimate benefit of the landlord. If his lease determines by efflux of time or is determined by forfeiture before twelve years of the date of such encroachment, his landlord would get possession of the encroached lands, but to allow him in such a case to have additional rent assessed from the date of the encroachment and while the term of the lease is subsisting, would lead to anomalous positions as has been pointed out by Mr. Justice B.B. Ghose in
6. I accordingly decree] the appeal in part. The Plaintiff''s claim for additional rent for the lands found to be outside estate No. 3846 will stand dismissed. The Appellant will have his costs of this appeal. The parties will have costs of the lower Courts in proportion to their success. Leave to appeal under the Letters Patent asked for is granted.
