JUDGMENT
Richard Garth, C.J.
1. Who, after stating the facts, continued.–It has been contended on appeal that the Subordinate Judge was wrong; and that as it has been found that the plaintiff had been in possession of the land for upwards of 12 years, paying no rent for it, and as the land did not form part of his taluq, he must be considered as having held it adversely to his landlord; and as he has held it in this way for more than 12 years, he has acquired a title to it by limitation.
2. This case, therefore, directly raises the question, what the law of this country is with regard to encroachments made by a tenant upon his landlord’s property.
3. There is no doubt whatever that by the English law, an encroachment made by a tenant upon land adjoining to, or even in the neighbourhood of, his holding, is presumed, in the absence of strong evidence to the contrary, to be made for the benefit of the landlord. See the recent cases of the Earl of Lisburne v. Davies L.R. 1 C.P. 259 and Whitmore v. Humphries L.R. 7 C.P. 1.
4. And this rule applies to all lands so encroached upon, whether the landlord has any interest in it or not. If a tenant, during his tenancy, encroaches upon the land of a third person, and holds it with his own tenure until the expiration of the tenancy, he is considered to have made the encroachment, not for his own benefit, but for that of his landlord; and if he has acquired a title against the third person by an adverse possession, he has acquired it for his landlord, and not for himself. See Kingsmill v. Millard 11 Ex. 313; Andrews v. Hailes 2 E. and B. 349 and this doctrine appears to have been adopted here in the case of Goroo Doss Roy v. Issur Chunder Bose 22 W.R. 247 as well as in other cases.
5. It is true, that by the English law, if it could be distinctly proved that the tenant made the encroachment adversely to his landlord, an adverse possession for 12 years might then give the tenant a title by limitation; and probably that would be so in this country.
6. But that was clearly not the case in this instance, because the plaintiff himself in his plaint claims the land in question as part of his taluq.
7. The only possible ground, as it seems to us, upon which a person in the plaintiff’s position could claim to retain possession of the land so encroached upon, would be, that the landlord had either expressly or impliedly acquiesced in the encroachment; or, in other words, that he had allowed the tenant to add the area encroached upon to his holding.
8. It might be supposed from the language of the judgment in the case to which we have last referred that the learned Judges there intended to lay down the rule more broadly, and to say that in all cases, whether the encroachments were made with or without the landlord’s consent, the tenant making it had a right to retain the land so encroached upon till the end of his tenancy. But we have consulted our brother Mitter as to this, and we find that it was by no means the intention of the Court in that case to lay down the rule thus broadly.
9. It would, indeed, seem strange if, as a matter of law, a tenant were allowed, without his landlord’s permission, to appropriate any land which adjoins his own tenure, and then when his landlord complained of the trespass, and required him to give the land up, he were allowed to take advantage of his own wrong, and insist upon retaining possession of it, until the expiration of his tenure.
10. In this particular case, however, it was no part of the plaintiffs’ case that the zemindar, either expressly or impliedly, had consented to the encroachment. His case in the first instance was, that the land in question formed part of his original taluq. That has been negatived by both the Courts.
11. He then contended that he had held it adversely to his landlord; but that, for the reasons already given, we have found to be untenable.
12. The result, therefore, is that the appeal must be dismissed with costs.
