P L D 1964 Dacca 655 (PLP)

3. Defendants Nos. 1‑7 contested the suit. Their case is briefly this : 281 acre portion of land in the southern half of C. S. Plot 2541 was taken in settlement by Zinnat Ali and Mafizuddin, they possessed it, and afterwards they sold this land to Azhar Ali, predecessor of defendants Nos. 3‑

8. Bande Ali possessed the remaining portion of the suitland. Bande Ali made an oral gift of the land to defendants Nos. 1 and

2. Defendants have been in possession for more than 12 years. Plaintiffs' vendors did never possess the suit land. The suit is barred by limitation.

4. The learned Munsif on the basis of rent receipts Exh. 2 series and the evidence on record held that the vendors of the plaintiffs took settlement of the disputed land from talukdars, possessed the land, and that after purchase, plaintiffs possessed the suit land, and that subsequently, defendants dispossessed the plaintiffs. The learned Munsif also held that the defendants had no right and title in the suit land. Accordingly the suit was decreed.

5. On appeal, the learned Subordinate Judge held that vendors of plaintiffs had not acquired any right and title on the basis of settlement from talukdars, as they had no right in the land ; that they could not claim any title in the land by adverse possession on the basis of possession of their vendors. It was further held that plaintiffs or their vendors did never possess the suit land, and that the suit was barred by limitation. Accordingly, the decision of the learned Munsif was set aside and the suit was dismissed. Hence this second appeal at the instance of the plaintiffs.

6. Mr. Roy, the learned Advocate on behalf of the appellants has contended that the lower Appellate Court erred in law in holding that the vendors of plaintiffs acquired no title in the land on the basis of settlement from talukdars, although they had no title in it. His contention is that bona fide lessees from trespassers can acquire valid title in the land, but that such persons would be holding the land under real owners and would be liable to pay rent to the real owners. In support of this contention reference has been made to the cases reported in I L R 20 Cal. 708 and 17 C W N

348. In the case of Binad Lal Pakrashi and others v. Kalu Pramanik and others (I L R 20 Cal. 708) it has been held that persons, who obtained possession as tenants under the bona fide belief of title of their landlords could have right and title in the land. The same principle was followed in the case of Kali Prasunno Das v. Bhagwan Mali (17 C W N 348).

7. Mr. Abdus Salam, the learned Advocate on behalf of the respondents, has contended fn reply that the principle laid down in the case reported in I L R 20 Cal. 708, is not applicable. In the present case, as the talukdars were not in actual possession of the suit land. In support of this contention, he has referred to the case Krishna Nath Chakraborty v. Mahomed Wafia (21 C W N 93). In that case, it has been observed that the principle of the Full Bench ease of Benad Lal Pakrashi and others v. Kalu Pramanik is an encroachment upon the ordinary rule of law that a grantor is not competent to confer upon the grantee a better title than what he himself possesses and must be cautiously applied, and is not to be extended. It has been further observed in that case that in order to make the principle available, it is essential that the lessor should be in possession of the disputed property as defecto landlord and that in good faith he should have inducted into the land a cultivator who has accepted the settlement in good faith. But in this case there is no dispute that talukdars were in possession of the suit land, as it was asserted that predecessors of defendants also originally took settlement from talukdars and came to possess the land.

8. It has been next contended by Mr. Roy that the lower Appellate Court erred in law in holding that the adverse possession of the plaintiffs could not be tacked with the adverse possession of their predecessors. The effect of this view of the learned Subordinate Judge would be that if a series of possessors of a piece of land, not claiming under one another, kept out the real owner out of possession for even 90 to 100 years, yet time would run only against him from the moment when the last of such occupiers entered into possession. This can never be the law. Successive trespassers can tack on, if there be no break in the continuity of their possession. This view is supported by the case of "'is v. Fari Howe (11 L R Ch. D. 545). The following observation was made in that case: "A continuous adverse possession for the statutory period, though by a succession of persons not claiming under one another, does . . . . . bar the true owner." In the case of Ramayya v. Kotomma and others (I R L 45 Mad. 370) it has been laid down that adverse enjoyment of immovable property for over twelve years, whether by a single person or by several persons in succession, even though they do not claim for one another, provided it is continuous and without a break, bars the true owner.

9. Mr. Salam, the learned Advocate on behalf of the respondents has contended in reply that the views of the learned Subordinate Judge that title cannot be acquired on the basis of bona fide settlement from trespassers, and that adverse possession of one trespasser cannot be tacked with the adverse possession of his predecessor‑in‑interest, would be no ground for interference in this case, because the learned Subordinate Judge did not dismiss the suit on those grounds only, but that he also consi dered the question of possession, and found on consideration of the evidence that plaintiffs or their predecessors‑in‑interest were not in possession of the suit land within 12 years preceding the institution of the suit. This contention has force, as the learned Subordinate Judge on a consideration of the evidence, came to the conclusion that plaintiffs were not in possession of the land at any time and that their predecessors also were not in possession within 12 years before the institution of the suit. The learned Subordinate Judge made the following remarks in the concluding portion of his judgment: "It has been shown above that there cannot be any adverse possession by plaintiffs as they were not in possession at all admittedly for the last 11 years and their possession for even one year has been disproved. It has also been shown that their predecessors were not in possession within 12 years from the date of filing of this suit." It has been next contended by Mr. Roy that the findings of facts relating to possession arrived at by the lower Appellate Court on assessment of evidence on a wrong interpretation of law is not binding in second appeal. In support of this contention he has referred to the cases reported in I L R 15 Cal. 48 ; L R 24 Cal. 825 and A I R 1935 All.

774. Facts in the case of Jugobundhu Pattack v. Jadu Ghose Alkushi (I L R 15 Cal. 48) were that a District Judge in deciding a rent suit, held that section 188 of the Bengal Tenancy Act prohibited the Court from entertaining the suit in the form in which it was framed, and therefore dismissed the suit. The judgment of the District Judge was set aside by the High Court on the ground that the District Judge had acted in the exercise of his jurisdiction illegally, inasmuch as section 188 of the Bengal Tenancy Act had no application to that case. The facts of that case have no bearing on the facts of the present case, as the facts of the present case are distinguishable. In the case of Ishan Chunder Das Sarkar v. Bishu Sirdar and others (I L, R 24 Cal. 825) it has been laid down that where the lower Appellate Court arrives at conclusion, which is an inference based upon an erroneous view of law, the judgment is open to question in second appeal. In that case, the question raised in second appeal was whether the finding that the purchase was not in good faith could be challenged in the second appeal. It was observed in that case that if the lower Appellate Court, after hearing found that the intention of the vendors was to delay or defeat their creditors, and that the plaintiff was aware of an impending execution against the vendors and nothing more, had come to the conclusion that the plaintiffs' purchase was not in good faith, then that conclusion was an inference upon an erroneous view of law, and could be challenged in second appeal. The facts of this case have no similarity with the facts of the case before us with the result that the principle laid down there will not be applicable to the present case.

10. In the case of Baboo Singh v. Ram Manohar and others (A I R 1935 All. 774) facts were that a co‑sharer brought a suit for declaration of his right to half of a tank in dispute, in the alternative for possession. Both the Courts below dismissed the suit as barred by limitation, disregarding the principle of law that among co‑sharers, possession of any one of them must be considered to be constructive possession of all, unless the person in actual possession ousted his co‑sharers in denial of their rights. It was held that a finding of fact arrived at in complete disregard of legal propositions involved in a case was vitiated by errors of law and was open to interference in second appeal. The facts of the above mentioned case also are not similar to the facts of the present case. The present suit was not by co‑sharers against some other co‑sharers. In the present case, the lower Appellate Court on a consideration of the evidence of P. Ws. has come to the finding that plaintiff or their predecessors were not in possession of the suit land within 12 years from the date of institution of the suit. This finding is not an inference based upon any erroneous view of law, and cannot be challenged in second appeal.

11. It has been next contended that the finding of the lower Appellate Court that Exh. 2 (c) is a forged one, notwithstanding the evidence of D. W. 3 Misir Ali, that he granted it, is not based on evidence, and as such is not binding in second appeal. Besides holding that the writing in Exh. 2 (c) might have deceived the sight of D. W. 3, the lower Appellate Court gave some other reasons also for disbelieving it. This Court has no jurisdiction to interfere in second appeal on the ground of erroneous finding of fact, however‑gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law which may possibly have produced an error or, defect in the decision of the case on merits. A fallacy in appraising the evidence as to a fact unless it amounts to a mistaken material assumption, is merely an error in coming to a finding as to that fact and such an error cannot be held to be an error in law justifying interference in second appeal. (See Abdul Majid and others v. Khalil Ahmed (P L D 1955 F C 38)).

12. Mr. Roy has also contended that the judgment passed by the lower appellate Court cannot be regarded as proper judgment of reversal, as the learned Subordinate Judge did not advert to the finding of the trial Court that 28 acre of land of the kabala Exh. D of Askar Ali (predecessors of defendant Nos. 3‑8) has not fallen in the disputed Plot No. 2541, but in Plot No. 2472, and as the learned Subordinate Judge also did not discuss about the evidence of the D. Ws.

13. Mr. Salam has contended in reply that plaintiffs can succeed on proving their own case, and that they cannot succeed on the weakness or defect in the case of the defendants, and that as plaintiffs have failed to prove that they were in possession of suit land within 12 years from the date of the institution of the suit, it was not necessary for the learned Subordinate Judge to discuss about the title of the defendants in the suit land or about the evidence of the D. Ws.

14. Article 142 of the Limitation Act applies when plaintiff sets up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. If the plaintiff fails to prove this, defendant is not required to set up his possession. Article 142 makes no refe rence to the defendant or to his possession. This view is supported by the cases in A I R 1938 Bom. 210 ; P L D 1955 F C 38 ; 4 D L R

171. In the case of Naru Shidu Galkwad v. Krishna Shidu Gaikwad and others (A I R 1938 Bom.210) it has been held that Article 142 is restricted to a suit based on the plaintiff's prior possession lost by dispossession, and that if the plaintiff fails to prove this, the defendant is not called upon to set up his adverse possession.

15. In the case of Ahmed Miaji and others v. Eakub Ali Munshi and others (P L D 1961 Dacca 259) it has been held that where the plaintiffs have set up a case of possession followed by dispossession, they must prove possession within 12 years of the suit.

16. In the case of Amjed Ali Khan v. Raj Kumar Das and others ((1954) 6 D L R) it has been held that in cases where plaintiff alleges to have been dispossessed or to have discontinued possession from a specified date, the onus is on him 'to show that he was in possession within 12 years from the date of institution of the suit and that such a case would be governed by Article 142 of the Limitation Act.

17. It is the plaintiff's case that they were dispossessed from the suit land in Chaitra 1354 B. S. corresponding to April 1948. But the plaintiffs have failed to prove that they or their predecessors‑in‑interest were in possession within 12 years from the date of the institution of the suit. The suit is barred under Article 142 of the Limitation Act, in the circumstances, it was not necessary for the learned Subordinate Judge to discuss about the Exh. D or about the evidence of D. Ws.

18. Mr. Roy has finally contended that the case should be sent back on remand to the lower Appellate Court for fresh discussion of evidence keeping in view the correct principles of law that bona fide lessees from trespassers can acquire good title in the land and that one trespasser can tack on his period of possession with the period of possession of the preceding trespassers. I find no ground to send back the case on remand, as the finding that the suit is barred by limitation is not an inference based upon any erroneous view of law. There is no ground to allow the appeal. The appeal is dismissed with costs. The judgment and decree passed by the lower Appellate Court are affirmed. S.Q Appeal dismissed.