Lord Atkinson:—

This is an appeal from the judgment and decree, dated the 22nd May, 1908, of the High Court of Judicature at Fort William in Bengal, affirming a judgment and decree of the 27th March, 1905, of the Court of the Subordinate Judge of Rajshahye.

The action out of which this appeal arises was brought by the respondent as purchaser at a sale held under Act II of 1859 in consequence of the non-payment by the owner of the Government assessment of the Kas Mahal Shyampur Paharpur situate within the Pergunna Sershabad, and No. 218 on the Touzi of the Maldah Collectorate, to recover possession of about 2,720 bighas of the Mouzah Nij Shampur alleged to form portion of the said Khas Mahal, the possession of which was withheld by the appellant, and for damages for mesne profits and further relief. This sale was held on the 14th of January, 1891, and duly confirmed on the 15th of March following. The appellant relied upon two defences — First, that the land, the possession of which was sought to be recovered, styled for convenience the land in dispute, did not form any portion of the mahal so purchased by the respondent, and, secondly that even if it did, the appellant and those through whom he claimed had held possession of this land adversely to all persons having claims upon it continuously since, if not before, the year 1859 up to the present time, and that the respondent's claim was therefore barred by the Limitation Act. In anticipation of this second defence the respondent, in his plaint, alleged that this adverse possession, even if proved, was under the provisions of Act XI of 1859 only an incumbrance on the mahal purchased, that on sale this latter was vested in him free from all incumbrances, including the incumbrance thus created, and that consequently his right to recover possession was not barred by the Limitation Act.

It was admitted by Mr. DeGruyther, on behalf of the appellants, that on the failure of an owner to pay the Government assessment, his estate or interest in the land is forfeited, or rather, determined, and that under such a sale as that which took place in this case, what was sold was not the interest of the defaulting owner, but the interest of the Crown, subject to the payment of the Government assessment, and that therefore the time limited by the Limitation Act only commenced to run from the date of the sale, in this case the 14th January, 1891. If this be so, then, as the action was instituted on the 23rd December, 1902, the statutory period of 12 years had not elapsed before the latter date, and the claim of the respondent to recover was unaffected. This defence may be accordingly put aside. There remains the part and parcel question.

In order to appreciate the respective contentions of the parties litigant, and the rulings of the Courts below upon this question, it is necessary to refer shortly to the history of those properties of which the land in dispute is alleged to have formed part.

It was not, their Lordships think, disputed that at the time of the decennial settlement of Bengal, one Chandra Narayan Roy was the zemindar of the pergunnah Sershabad, and that the permanent settlement of 1793 was made with him in respect of that pergunnah. Neither was it disputed that at the time of this settlement Chandra Narayan Roy improperly returned as debottar lands, i.e., lands devoted to religious purposes, and therefore unassessable to Government revenue, portion of eight mouzabs or villages forming portion of the pergunnah Sershabad. The Crown being misled by this untrue statement subsequently instituted proceedings under Regulation 2 of 1819 dealing with such matters, to deprive by way of resumption, Chandra Narayan Roy and his successor of the land so untruly described. The Crown represented by the Indian Government obtained a decree for resumption of this latter land on the 24th of December, 1834, which was on appeal confirmed by the Special Commissioner on the 18th of June, 1836. Possession of th