Das, J.@mdashThe predecessor-in-title of the plaintiff granted a mokarrari istumrari lease in favour of Dipnath Singh and Mitarjit Singh. It is conceded that the lease was not a hereditary lease but that it was operative for the lifetime of the grantees. Mitarjit Singh who survived Dipnath Singh died sometime in 1902. The suit out of which this appeal arises was instituted on the 1st of April 1920 for the ejectment of the defendants. The suit has been dismissed as against defendants Nos. 8 to 11 on the ground that they have acquired a title by adverse possession.
2. It is contended that, on the admission made by defendants No. 8, there was no question of adverse possession to be tried. Defendant No. 8 said in examination-in-chief that he never paid rent for the mauza to the Ramgarh Raj. In cross-examination he said as follows: "I paid rent for the mauza in suit for two or three years after Mitarjit''s death to Narsingh Dyal the zarbharnadhar of the mauza under the Raja, and I used to get receipts from him. I paid rent to him for 9 or 10 years in all. The receipts which I got from the zarbharnadhar are at home. They were marfatdari receipts."
3. It is contended that there is a direct admission by defendant No. 8 that there was payment of rent by him to the Raj and that the payment of such rent by defendant No. 8 and the acceptance thereof by the plaintiff operated as a recognition of defendant No. 8 as a tenant from year to year, and that, that being so, the defendants could not put forward a title by adverse possession as against the plaintiff. If this argument is to succeed at all it could not help defendants other than defendant No. 8; but, in my opinion, the argument ought not to succeed at all. It will be noticed that the Court below has proceeded on the hypothesis that rent was never paid by these defendants and it appears that the argument was not put in this form in the Court below. But what is the admission made by defendant No. 8 in this case? his admission is that the zarbharnadhar of the Raj accepted rent from him and granted him marfatdari receipts. Now marfatdari receipts are receipts made out in the name of the original tenant although they show that the rent has been actually paid by a third person. The question is whether the grant of marfatdari receipts operated as a recognition of defendant No. 8: as a tenant from year to year.
4. In my opinion, the question is essentially one of fact. I can quite understand the position where for a number of years such receipts are granted without any protest by anybody and the inference may be raised that there was creation of a tenancy. But in this case defendant No. 8 says that in 1901 or 1905 he went to the Raja and demanded receipts in his own name. The Raja was willing to grant marfatdari receipts but was not willing to give him receipts in his own name. He declined to take marfatdari receipts and the Raja threatened to sue him in ejectment. It is conceded that since that interview no rent has ever been paid by defendant No. 8 or by any of the defendants. Mitarjit Singh, as I have said before, died in 1902.
5. Now the story told by defendant No. 8 has been accepted by the learned Judge in the Court below and we have not been invited in, this Court to dissent from the view expressed by the learned, Judge on this point.
6. Now the question is, was a tenancy in favour of defendant No. 8 created by acceptance of rent from him. It seems to me that the facts clearly establish that there was no intention on the part of the plaintiff to treat defendant No. 8 as a tenant and that there was no intention on the part of defendant No. 8 to pay rent to the Raj except on receipts made out in his name. That being so, there was no creation of a fresh tenancy in favour of any of the defendants and the plaintiff''s suit is clearly barred by the provision of Article 139 of the Limitation Act.
7. It was then contended that the learned Judge erred in dismissing the plaintiff''s suit in respect of the 15-annas 9-pies interest claimed by defendants Nos. 8 to 11. It appears that defendant No. 8 holds as mortgagee to the extent of 1-anna 6-pies and that defendants Nos. 9 to 11 hold as mortgagees to the extent of 2-annas, and the contention is that so far as these interests are concerned, the plaintiff should have succeeded. The point was not argued in the Court below; nor has it been taken in the grounds of appeal in this Court. But in any case I do not understand how the point can be raised. The defendants were actually in possession of this land. It was necessary for the plaintiff to sue for recovery of possession of this land within 12 years from the death of Mitarjit Singh. The suit not having been brought within 12 years from the death of Mitarjit Singh, the whole suit must be dismissed as barred by limitation.
8. In my opinion the decision of the learned Subordinate Judge is right and it ought to be affirmed.
9. I would dismiss this appeal with costs.
Adami, J.
10. I agree.
