Adverse possession by a tenant of one or more landlords against the land of another landlord does not create a tenancy relationship between the tenant and the other landlord.

( 1 ) THE petitioner brought the present suit for joint possession of 6-1/2 bighas of land in 18, 18/1, 18/2 and 18/3 Alipore Road, within the Municipality of Calcutta, on the strength of his purchase at a sale for arrears of revenue of Touzi No. 6 of the 24 Parganas Collectorate. These lands, according to the petitioner, appertained to a number of amalgamated touzis, touzis Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 33, 51, 53 and 91. It is averred that the former proprietor of touzi No. 6 was in khas possession of his interest therein and had not let it out to any person; that the defendant's possession of these lands as regards what appertains to touzi No. 6 was an, encumbrance, so that the plaintiff as purchaser at a revenue sale having obtained the interest free from encumbrances was entitled to obtain joint possession thereof with the defendant, who has title to the lands in so far as they appertained to some other touzis. There was also a prayer for mesne pofits.

( 2 ) THE defence inter alia was that the lands do not appertain to touzi No. 6; that the defendant's interest is not annullable in law, that the Mourashi Mokarari tenancy of the defendant was in existence from before the time of the settlement of touzi No. 6. After this written statement was filed and before the suit could come up for hearing, West Bengal Act 7 of 1950, was enacted by which all the leases of land existing at the date of issue of the notification for sale of an estate for arrears of revenue became un-annullable by the purchaser at the revenue sale, and it was further provided by Section 7 that every suit for ejectment under Section 37 of the old Act 11 of 1859 pending on the date of commencement of Act 7 of 1950 shall abate if the suit could not have been validly instituted, had the Act 7 of 1950 been in operation at the date of institution of the suit. In view of this, an additional written statement was filed by the defendant on 7-10-1950, pleading that even if it be found that the land in suit or any portion thereof appertains to a group of undivided touzis which includes touzi No. 6, the defendant has acquired a right of Mourashi Mokarari tenant in respect of the same, either by grant or by adverse possession and that the suit has abated inasmuch as it could not have been validly instituted had the West Bengal Act 7 of 1950 been in operatio at the date of the institution of the suit.

( 3 ) THE learned Subordinate Judge has, after consideration of the oral and documentary evidence, come to the conclusion that the defendant became a tenant under the former proprietor of touzi No. 6 by adverse possession and so the suit has abated.

( 4 ) IN the present application the plaintiff contends that the learned Subordinate Judge was in error in thinking that the defendant had become a tenant under the former proprietor and that on account of this error be has; erroneously declined to exercise jurisdiction in the suit and that this error' should be rectified.

( 5 ) IT is obvious that if the decision that the defendant was a tenant under the former proprietor was erroneous, the suit could have been validly instituted even though Act 7 of 1950 had been in force at the date of the institution of this suit, and so the suit would not abate under Section 7. If on the other hand the defendant became a tenant as found by the Subordinate Judge, the suit could not have been validly instituted in view of the amended Section 37 after the enactment of West Bengal Act 7 of 1950 and the order of abatement should be held to have been rightly passed.

( 6 ) A preliminary point was raised on behalf of the defendant that the order passed by the learned Subordinate Judge was in substance an order of dismissal and so an appeal lay against his order. This point is governed by the authority of this Courts decision in Subodh Gopal v. Nilabja Barani Debi, 59 Cal W. N. 1056 (A ). We are bound by this authority, with which we respectfully agree,