A trespasser who comes into possession of land under a void lease can acquire a permanent tenancy right by adverse possession after 12 years.

Ramaswami, J.

1. The question to be determined in this appeal is whether the claim of the plaintiff is barred by adverse possession under Article 144 of the Indian Limitation Act.

2. To enable this question to be considered it is necessary to state the material facts. It is the admitted case that the plaintiff is the occupancy tenant of khata Nos. 36 and 37 of village Silphore, that Thakkan Tewari and his brother Kali Tewari were khorfa tenants with respect to a part of the land comprised in the two khatas and they used to pay annual rent of Rs. 3 to the plaintiff. In the record of rights prepared in 1922 Thakkan Tewari and Kali Tewari are shown as under-raiyats paying rent to the plaintiff. In 1924 Thakkan Tewari and Kali Tewari died. The plaintiff alleged that he obtained khas possession of the land soon after; but in 1944 he was dispossessed by the defendants. The plaintiff therefore brought the suit for ejecting the defendants.

The main ground of defence was that the plaintiff never obtained possession of the land after the death of Thakkan Tewari and Kali Tewari. The defendants asserted that they continued in possession as heirs of Thakkan and Kali Tewari, that they were permanent tenants of the land and were not liable to be ejected. The learned Subordinate Judge accepted the case of the plaintiff and decreed the suit in his favour. In appeal the decree of the Subordinate Judge has been reversed by the District Judge of Purulia, who held that the defendants had established that they were in adverse possession for a period of more than twelve years and the suit was barred by time.

3. In support of this appeal Mr. G. C. Mukharji addressed the argument that Section 46 of the Chotanagpore Tenancy Act was a complete bar to a permanent transfer by a ryot of his right in a holding or any portion thereof and the learned District Judge was erroneous to hold that the defendants had established adverse possession of an interest which is proscribed by statute. Sec. 46 of the Chotanagpore Tenancy Act states:

"(1) No transfer by a raiyat of his right in his holding or any portion thereof, (a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or

(b) by sale, gift or any other contract or agreement, shall be valid to any extent.

Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years.

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3. No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction."

In support of his argument learned counsel placed reliance upon MADHAVRAO WAMAN V/s. RAGHUNATH VENKATESH, 47 Bom 798 in which watandars had brought a suit for ejectment of the defendants from service watan lands in mouza Bhivashi in the district of Belgaum. The defendants were not watandars but they alleged in the written statement that they had acquired by adverse possession a right to hold the land as permanent tenants. Sec. 5 of Bombay Act III (3) of 1874 which applied to the land in question prohibited alienation by a watandar. That section is as follows: "No watandar shall, without the sanction of Government sell, mortgage, or otherwise alienate or assign any watan or part thereof or interest therein to any person not a watandar of the same watan."

Upon the facts proved the Subordinate Judge gave the plaintiffs a decree for six years rent taut otherwise dismissed the suit with costs. From that decree the plaintiffs appealed to the High Court and the only question argued in the appeal was whether the defendants can claim to have established a right of a permanent tenancy by adverse possession. The High Court held that there had been two breaks in the alleged adverse possession within 12 years of the death of Venkatrao and the defendants cannot upon the evidence contend that there has