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Bombay High Court
Maidin Saiba vs Nagapa And Ors. on 28 November, 1882
Equivalent citations: (1883) ILR 7 Bom 96
Author: K Charles Sargent
Bench: C Sargent, Kt., N Haridas


JUDGMENT

Charles Sargent, Kt., C.J.

1. The suit is to recover possession of certain lands to which the defendant pleads that they were included in a mulgeny lease granted to him in 1849 and also that the plaintiff’s claim is barred by the Statute of Limitations. The District Court has found first, that the lands were not included in the lease; secondly, that the defendant has been in actual possession of the lands ever since 1849, claiming throughout to hold them as such mulgeny tenant. The Full Bench ruling in Dinomoney Dahea v. Doorgapersad Mozoomdar 12 Beng. L.R. 285 is conclusive as to the right of the defendant to set up the defence of tenancy and at the same time to rely on the Statute of Limitations. But it was said that inasmuch as the defendant has always claimed the land as a permanent tenant, there has been no adverse possession as contemplated by Article 144 of the Limitation Act XV of 1877. In the case reported at the foot of 12 Bengal Law Reports, 282, the Court held that such possession was not adverse, because notice of defendant’s claim to hold it under mokurrari tenure had hot been given to the plaintiff; but here, if not from 1849, at any rate ever since 1856, the plaintiff was acquainted with the fact that the defendant insisted that the lands were included in the mulgeny lease. Again, as far back as 1856, the plaintiff was actually engaged in asserting his right by endeavouring to let the lands to other tenants. Under those circumstances it is impossible, we think, to hold that the defendant’s possession was not adverse to the plaintiff. The defendant was, in fact, a trespasser setting up a pretended tenancy which the plaintiff throughout denied, and we entirely agree with Mr. Justice Mitter in his remark at page 280, 12 Bengal Law Reports, that the case must, under such circumstances, be regarded as throughout a case against a trespasser, and not as one between landlord and tenant. The decree must, therefore, be confirmed with costs.


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