JUDGMENT
Misra, J.
1. This is a suit for recovery of possession of khata Nos. 63 and 62 of mouza Bunumda. The plaintiff-respondent instituted the suit on the allegation that his father Chamru left the village eleven years before the date of this suit. He died some time in 1936. He had a brother named Chamru Chik who also died in 1945. After the death of Chamru, when the plaintiff went to take possession he found the defendants in possession of the land, who claimed that they were there by virtue of their right as settlement holders of the land from the landlord. The plaintiff took recourse to a proceeding under Section 68, Chota Nagpur Tenancy Act, but the learned Deputy Commissioner referred him to the Civil Court. He alleged that the landlord had no right to take possession of the land nor to settle it with anybody as his father had not abandoned the holding in suit, as the landlord appeared to think. Defendant No. 1, who was the landlord and the settlees-defendants Nos. 2 to 5 pleaded that plaintiff’s father abandoned the holding some time in 1932 and went to another village without making any arrangement for the payment of rent. Since, therefore, he abandoned the holding, defendant No. 1, the landlord, took possession of it in 1936, and settled it with the other defendants.
The suit was barred by limitation and it was also not cognizable by the Civil Court.
2. The trial Court dismissed the suit holding that the plaintiff’s father, in fact, had abandoned the iands within the meaning of Section 73, Chota Nagpur Tenancy Act and the landlord was accordingly entitled to come into possession of the lands in his own right. But since no steps were taken by the landlord as required under Section 73 of the Act, the plaintiff could not take advantage of the shorter period of limitation provided for in that section. He held, however, that the settlement, in the circumstances, by the landlord defendant No. 1 in favour of defendants 2 to 5 was legal and valid. He held also that although the plaintiff made out a good case on the score of Section 73 of the Act he could not succeed in the suit as his claim was barred under the general law of limitation. According to the learned Munsif, the case was governed by Article 142 of the Limitation Act under which the plaintiff had to prove his possession within 12 years from the date of the institution of the suit of the property of which he sought recovery of possession. He failed to discharge the onus in the matter as he could not prove the exact date of departure of his father Chamru Chik from village Bunumda,
Coming to that conclusion on the point of limitation, the learned Munsif dismissed the suit. The learned Subordinate Judge, who disposed- of the appeal which was filed by the plaintiff, however, came to a contrary conclusion. In his opinion, Article 142 of the Limitation Act was not the proper Article to apply to the facts of the present case but Article 144, which would govern it. It was, therefore, the duty of the defendants to prove adverse possession for a period of 12 years before the plaintiff could be debarred of his right to recover possession of the suit land which, admittedly, was the raiyati holding of his father Chamru Chik. On facts, referring to certain admissions made by the defendants’ witnesses, he found that Chamru Chik left the village one year after the final publication of the record-of-rights, which took place in 1933. The plaintiff’s father left the village, according to the defendants’ evidence, one year after that event, so that it would be sometime in January 1934. He supported this conclusion with reference also to the written statements filed by defendants 1 and 2. He observed as follows :
“From the evidence of these witnesses it would appear that Chamru was in possession of the holdings in suit for about one year alter the final publication of the Record of Rights, that is, until about January 1934, and then he left mouza Bulumda. The landlord is alleged to have entered upon the holding two or three years thereafter, that is, in January 1936, at the earliest.”
According to the learned Subordinate Judge, the lands remained fallow from January 1934, when the plaintiff’s father left the mouza, until 1936, when the landlord entered upon it and settled it with the defendants. Since the suit was filed on 17-4-1946, it must be well within the period of 12 years, as the adverse possession of the de-‘fendants can be taken to have begun only from 1936 and not at an earlier date. He held, however, that the plaintiff’s father had abandoned the holding without making any arrangement for the payment of rent to the landlord.
A point was raised in the Courts below whether the suit was at all cognizable by the civil Court In view of the provisions of Section 258, Chota Nagpur Tenancy Act. But both the Courts below decided against the defendants so far as the jurisdiction of the civil Court, was concerned. That point appears to have been actually abandoned before the lower appellate Court by the learned lawyer for the plaintiff-respondent. The learned Subordinate Judge allowed the appeal and decreed the suit.
3. The defendants have preferred this appeal against the decision of the learned Subordinate Judge which has been heard ex parte, as Mr. S. K. Sarkar, who filed vakalatnama on behalf of the respondent, stated to the Court that he had no instruction in the matter. Mr. Sudhir Chandra Ghosh in support of the appeal has urged that the present case is governed not by Article 144 of the Limitation Act in any view but by Article 142 of the Act. He has also contended that the two Courts below having found that there was abandonment within the meaning of Section 73, Chotanagpur Tenancy Act, it was not necessary for the landlord to start a proceeding by filing an application before the Deputy Commissioner as contemplated under that section. The abandonment proved is a fact which must be effective as against the plaintiff, and if the landlord takes possession and further makes settlement of the land with a third person such a bona fide settlee must not be disturbed in his possession by the original raiyat. It is no doubt true that in the present case there is a concurrent finding of fact of the Courts below that Chamru Chik, father of the plaintiff, had left the village without making any arrangement for the payment of rent so as to make the landlord competent to re-settle the land under Section 73, Chotanagpur Tenancy Act.
The Courts below, however, have differed only with regard to the period of limitation and the particular Article of the Limitation Act applicable to the present case. I have already stated that according to the learned Munsif, Article 142 would apply whereas according to the learned subordinate Judge, Article 144 would apply which would affect the burden of proof as well as the other elements to be proved by the defendants with regard to adverse possession if the case was governed by the latter Article, viz., 144 of the Act. Mr. Ghosh has drawn my attention to certain admissions made by the plaintiff’s witnesses themselves which would show that plaintiff’s father abandoned the village in fact in 1932. In second appeal, however, I am not prepared to go into facts as the learned Subordinate Judge based his finding upon the evidence on record in the case. It was open to him to consider the. evidence in the light of what was stated on the point by the plaintiff or by the defendants or their witnesses. The learned Subordinate Judge chose to refer to the statement made by the defendants’ witnessses, and I must hold that he committed no error of law in relying upon such evidence. I must accordingly hold in agreement with the learned Subordinate Judge that plaintiff’s father left the village sometime in January, 1934 and not earlier than that.
4. The question, however, for determination is whether the period of limitation would start from January 1934 or 1936. If the starting point of limitation is fixed as January 1934, the suit is clearly barred by limitation as the suit started from April 1946. If. however, the period is computed from some date in 1936 when the landlord is alleged to have entered upon the land, the suit must be within time. In my opinion, the present case is governed by Article 142 and not Article 144, Limitation Act. Article 142 provides for a suit by plaintiff for possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. It is no doubt true that, prima facie, the present case is not one of dispossession by the landlord–a concept which I shall again advert to presently–but, if the finding of fact of the courts below stands, it is a case of discontinuance of his possession of the land by the raiyat because the plaintiff’s father undoubtedly left the land. Learned counsel contended that the period of 12 years would start from the date when such discontinuance began. It is no doubt true that such an argument is difficult to accept if the case were governed under the ordinary law as between two owners whose scope of possession would be of the same degree and extent as between two raiyats or two landlords, and so on.
It is well settled by authorities that there can be no discontinuance within the meaning of Article 142 for the purpose of limitation unless the land of which possession is alleged to have been discontinued has come into possession of somebody. If it is a mere case of non-user of the property by the real owner, it will not constitute discontinuance within the meaning of Article 142. English cases on this point are absolutely unanimous. In –Smith v. Lloyd, (1854) 9 Ex 562 (A), Parke, B. delivered the judgment of the Court as follows:
“We are clearly of opinion that the statute applies, not to want of actual possession by the plaintiff, but to cases where he has been out of and another in possession for the prescribed time. There must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected to bring the case within the statute. We entirely concur in the judgment of Blackburn, C. J., in — ‘McDonnell v. Mckinty’, (1847.) 10 Ir L R 514 (B), and the principle on which it is founded.”
The same view has been expressed by the Privy Council in the case of — ‘Agency Co., Ltd. v. Short’, (1888) 13 AC 793 (C). That appears to be the principle followed in the Indian” decisions subject, of course, to the nature of the property to be possessed, in which case a discontinuance has been interpreted differently in different contexts. But, generally speaking, that is the law which can be taken as governing the matter. In the present case, however, I find that Section 73 of the Chotanagpur Tenancy Act which corresponds to Section 87 of the Bihar Tenancy Act, makes provision for a particular kind of discontinuance which has been specifically nomenclatured as abandonment. It has been defined in the Act as giving up possession by a raiyat of land going to another village for residence without making arrangement for payment of rent, so that the landlord is not able to determine against whom he will proceed for the rent which is entirely in respect of the land of which possession has been given up by the tenant. Khwaja Mohammad Noor, J. in the case of –‘Jagat Mohan Prasad v. L. W. Bion’, AIR 1937 Pat 479 (D) has correctly enunciated the proposition, if I mav say so with respect, so far as the meaning of Section 87 of the Bihar Tenancy Act is concerned. His Lordship stated as follows:
“A reading of the section as a whole clearly shows that whenever a landlord tabes a proceeding under Section 87 of the Act and a notice is published in conformity with it the tenant must have the matter settled within the time prescribed in the section. Taking steps under that section is not obligatory upon the landlord, but if he takes possession of the holding otherwise than in conformity with that section, he does so at his own risk and in that case he will not get the advantage of a shorter period of limitation prescribed for suits by the raiyats.”
5. It is thus clear that if the elements contemplated by Section 87, Bihar Tenancy Act or Section 73, Chotanagpur Tenancy Act, are in fact found present in a certain act of discontinuance of possession, it will constitute abandonment, and the landlord’s right begins in respect of the property from that very date. In this regard, it seems to me that abandonment as covered by these two sections constitutes discontinuance as contemplated by Article 142 of the Limitation Act. As Khwaja Mohammad Noor, J. has concluded that if the landlord does not act under that section (Section 87) he will not be entitled to the shorter period of limitation, which might debar the plaintiff from recovering possession. It cannot, however, be successfully urged that there is no abandonment or that there is no legal consequence of such a discontinuance. In my opinion, if the landlord has entered upon the land and made settlement of it he will be deemed to be in possession as of the other lands within the ambit of his zemindari, subject to the right of the tenants holding it in accordance with the Bihar Tenancy Act or the Chotanagpur Tenancy Act, as the case may be.
If there is abandonment in fact there is no discontinuance of possession as in the ordinary case, but landlord’s possession must be deemed in the eye of law to begin from that date and the tenant cannot take advantage of the fact that as long as the landlord has not come to possess the land, it will be deemed still to be in his possession. If that were so, then the provision for abandonment as defined under Section 73, Chotanagpur Tenancy Act, or Section 87, Bihar Tenancy Act, would be without any meaning, which I am not prepared to accept, can be the case. It is no doubt true that it will depend upon the facts of each case whether there has been abandonment as contemplated in these two sections or not, but where there is evidence to support such a conclusion it must have the necessary logical consequences attaching thereto. In my opinion, therefore, period of limitation in the present case under Article 142 which contemplates both dispossession and discontinuance of possession read with Section 73, Chotanagpur Tenancy Act, would begin from January 1934, when, according to the learned Subordinate Judge, Chamru Chik left the village.
I find that a Division Bench of the Calcutta High Court consisting of Mookerjee and Caspersz, JJ. in the case of — ‘Ram Pershad Koeri v. Jawahi Roy’, 7 Cal L J 72 (E), expressed themselves in somewhat identical terms. Their Lordships also took the view, as the head-note indicates, that Section 87, Bengal Tenancy Act was not exhaustive and the landlord was not a wrong-doer merely because he re-entered upon the holding before he followed the procedure laid down under that section. His Lordship Mookerjee, J. expressed referring to sub-section of Section 87, Bengal Tenancy Act that “Sub-section (3) conclusively shows that the abandonment, if there is one, is independent of the service of notice”. This is in consonance with the view expressed by their Lordships in the case to which I have made reference above. The conclusion, therefore, is that the view of the learned Subordinate Judge that the defendants will have to prove adverse possession in the present case, which will begin from 1936, cannot be accepted as correct. The suit, therefore, must be held to be barred as having been filed in April, 1946, which is more than 12 years from January, 1934 when Chamru Chik, plaintiff’s father, abandoned the village, as found by the lower appellate court.
6. In view of the conclusions reached above,
this appeal must be allowed. The judgment and
the decree of the learned Subordinate Judge are
set aside and those of the learned Munsif restored.
Since the respondent is not present in this Court,
there will be no order as to costs.