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Judgment
Rowland, J.—The plaintiff, who is the appellant here, is the proprietor of Dhalbhum Pargana. The claim was to recover damages for the wrongful cutting and selling of timber in two villages Bhitaramda and Kuraluka and for a permanent injunction restraining the defendants from committing similar acts of waste in future. Defendants 1 to 11 were the descendants of Kinu Dhal, a kinsman of a predecessor of the plaintiff. The plaintiff''s predecessor had made a grant by way of khorposh in favour of Kinu Dhal. The grant gave to the grantee certain rights in respect of 18 villages of which we are concerned only with the two mentioned above. One of these villages, Bhitaramda, was leased out in mokarrari by defendant 1 acting on behalf of himself and the other descendants of Kinu Dhal to defendant 12. Thereafter defendant 13 took a timber cutting lease from defendant 12 in respect of Bhitaramda and from the other defendants in respect of the timber of village Kuraluka.
The case made by the plaintiff was that the grant was a grant for maintenance of the rent income of the mauzas. In the patta it was stipulated that the grantee should enjoy 36 aras of paddy on account of bhaoliment valued at Rs. 72 and the cash rent arising within the mauzas of Rs. 58-8-0, in all Rs. 130-8-0. The grantee was to supply annually to the grantor one he-goat for sacrifice and four annas instead of one she. goat in respect of each village year after year. The plaintiff submitted that Kinu and his descendants had and have no other right and interest in the mauzas except enjoyment of khorposh by realizing rent, etc., there from. In particular the grantees had and have no right to cut or appropriate or sell or settle the jungles existing in the said mauzas. It was admitted that at the time of the last settlement operations, the jungles had been recorded in the name of the khorposhdars, but it was pleaded that the entry was made by mistake and thereby the right of the plain, tiff cannot be affected; nor can the defendants have any right to cut and appropriate the trees in the jungle. It was further stated that within the three years before suit, something more than 4000 poles had been cut and appropriated for which Rs. 6000 odd was claimed as damages, and as stated a permanent injunction was asked for.
Defendants 12 and 13 filed separate written statements and defendants 2 to 6 filed a joint written statement. But substantially all the defences raised are the same. It was pleaded firstly that the grant was a permanent heritable and transferable grant of all the rights in the villages including the right of cutting, appropriating and selling timber. In the alternative it was pleaded that ever since the time of the grant, Kinu and his descendants had been possessing and exercising full rights in respect of the entire villages including the jungles and including the cutting, appropriating and selling of timber from the jungles. In short, the defence was in the first instance that the defendants had a good title, and failing that, that the defendants by long possession adversely to the plaintiff and his predecessors had acquired a good title and the plaintiff''s right to sue was barred.
The plaintiff put in evidence Ex. 5, a certified copy of the grant. After some discussion as to whether it was to be accepted as a certified copy of the original grant the Subordinate Judge answered this point in the affirmative and this finding has not been contested in appeal, that is to say, before us both parties are content to accept Ex. 5 as being a true copy of the original grant. The Subordinate Judge has set forth in his judgment the principal contents of the document and has held that the document did not convey any right to timber. He also observed that he found nothing in the terms of the patta to give rise to the inference that the settlement was a permanent or heritable one. He was of opinion that the jungle area was not at all transferred by the patta. He also observed that even if the trees were included in the grant, the defendants or their predecessors had no-right to cut and appropriate the trees and that such conduct would amount to damage or waste of the jungle. But he found that from the time of Kinu onwards, the granite and his successors had been enjoying not only the usufruct of the jungle portion of the mauzas but also the cutting, removal and sale of timber from the jungle openly and as of right, and at least since 1894 to the knowledge of the plaintiff, who, in that year, had in settlement proceedings objected to an entry in the settlement record with regard to the right of Madhusudan Dhal, son of Kinu, to use and sell the timber and other forest produced from the jungle. The claim of the Dhalbhum estate on that occasion was that Babu Madhusudan Dhal is only entitled to the cultivated area and to no part of the jungle.
In the result, the Subordinate Judge dismissed the suit as being barred by limitation, observing that had the plaintiff succeeded,, he would have awarded damages at; annas 8 per tree in respect of the 4000 trees cut by defendant 13.
The finding as to the number of trees cut and their value has not been contested by either party in this appeal and the objections against the Subordinate Judge''s findings are on the one hand by the plain, tiff-appellant that the suit should not have been held to be barred by limitation because the cutting and appropriation of timber from the jungle was an act of waste giving rise to a separate cause of action on every occasion on which a tree was wrongfully cut and therefore although the rule of limitation might debar the plaintiff from recovering damages in respect of any particular tree cut more than three years before the suit, no lapse of time could give the defendants by prescription the right to suit trees generally or could take away the property in the trees which remained with the plaintiff so long as the trees were in the possession of his lessees as his tenants. On the other hand the respondents questioned the finding of the lower Court that the full rights in the villages, including the right to timber, were not included in the grant. It will be convenient first to deal with the point raised by the respondents, for once the terms of the grant are construed, it will be a less complicated matter to apply the law to the resultant position. The patta Ex. 5 is addressed to Kinu Dhal and recites that
after granting your application the sum of Bs. 130-8-0 is granted for your maintenance according to compromise. In lieu of this amount you will enjoy...within Taraf Atkosi Touzi Rs. 3 and paddy rent 3 aras in respect of Mouza Kundalukar...and Touzi Rs. 3 and paddy rent 3 aras in respect of Hauza Bhitaramda...Enhancement and reduction rests with you.
There are similar entries regarding the other 16 villages. No boundaries are given. The grant on its face appears to be an assignment of the rent income of the abadi lands of the villages. It seems to me on a reading of the grant that the jungle and waste lands were not at all granted to the khorposhdar. We were shown in the course of the hearing a map from which it appears that there is a jungle block quite separate from the portion of the mauza within which the village site and cultivated lands are situated and the plain reading of the grant does not suggest at all that the jungle block was intended to be included in the grant. The grant appears to have given to the khorposhdars no rights at all in respect of the jungle area. That being the effect of the grant, I will next state what has been found regarding the enjoyment of the village and of the jungle included within the boundaries of the mauzas. The Subordinate Judge has found, and his finding has not been contested in appeal, that it is shown by documents going back to about 1869 that the khorposhdar and his successors have all along been both enjoying the usufruct of the jungle block and the receipts obtained by cutting and selling timber and by leasing out the right to cut and remove timber from the jungle from time to time. "Whether these rights were enjoyed and exercised openly as of right and to the knowledge of the plaintiff or his predecessor from the beginning, the Subordinate Judge has not stated. But he is dearly of opinion that at least from 1894 and earlier the right claimed was claimed adversely and to the knowledge of the plaintiff and his predecessors because of the dispute in the settlement proceedings to'' which I have already referred. As I have pointed out, the claim of the plaintiff at that time was that Madhusud a Dhal was only entitled to the cultivated area and to no part of the jungle. My reading of the grant leads me to the view that the contention of the plaintiff at that time was in agreement with the purpose of the grant. 8. The defendants and their predecessors were however all along possessing adversely the usufruct of the jungle as well as the timber rights. Now, it is contended for the plain, tiff that no length of adverse possession can give a tenant a right to create waste in the property which is the subject of his lease, and in support of this principle we are referred to Lord Courtown v. Ward (1802) 1 Sch & Lef 8. In that case the tenant had been appropriating and selling peat which he was entitled to take for his household use but not to carry to the market and sell. The peat was of his own tenancy. The case is therefore not strictly in point here. We have been referred to Mohammad Mumtaz Ali Khan v. Mohan Singh A.I.R (1923) . P.C. 118. Here a tenant while in possession of his tenancy had asserted in a judicial proceeding that his status was that of an under, proprietor and not merely an occupancy title-holder; it was held that the assertion and continued possession of the tenant while asserting that title, could not, by lapse of time, create any prescriptive higher title than the tenant had a right to. It was pointed out that Section 28, Limitation Act, extinguishes the right of a person to any property at the determination of the period limited to him for instituting a suit for possession of such property and that there was no other Section which would have the effect of extinguishing a right of property which is vested in one person and transferring it by the mere lapse ''of time to the person actually in possession. It would seem then that a plaintiff will not lose his title on the ground of adverse possession, unless he has been in a position to sue to recover possession of the property in respect of which title by prescription is set up against him.
On the other hand, it has been stated in several decisions that the principles governing rights to timber and rights to minerals in leasehold properties are governed by similar, if not identical, considerations and there are undoubtedly oases in which a tenant, while in possession of demised premises, has been allowed to set up successfully that he has acquired a title by prescription" to minerals underlying those premises and to defeat by a plea of limitation the claim of the landlord to property in the minerals. I may refer to the well-known case in Nageshwar Bux Roy v. Bengal Coal Company . If that be the rule regarding minerals, it would seem logical to apply the same rule to timber. It may be questioned whether the observations of their Lordships of the Judicial Committee in Mohammad Mumtaz Ali Khan v. Mohan Singh A.I.R (1923) . P.C. 118 were intended to lay down a rule which would debar a tenant from prescribing against his landlord for rights either in minerals or in timber on land leased out to him. The precise position does not arise here; for on the view that I take, it was open to the predecessor of the plaintiff to take action against Kinu or his successors and to recover from them possession of the jungle block, thereby excluding the khorposhdars both from the usufruct and from the corpus of the trees. That being so, when the khorposhdars continued to hold and enjoy both the fruits, etc., and the timber by cutting and sale, I can see no reason why the Courts should not accept the position that in respect of both these rights they were prescribing and obtaining title by adverse possession at the same time.
It is argued that because the khorposhdar''s original entry into the villages was by virtue of a lease, he should be deemed, if and when he encroached beyond the area given him in his lease, to take the encroached area on the same terms as those in the original grant. I do not think this position agrees with the law as explained in Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty 1905 CriLJ 125 where Mookerjee, J., examined the law regulating enoroaoh-ments made by a tenant upon the property of his landlord:
An encroachment made by a tenant from the adjoining waste of his landlord is prima facie made, by him in his character as tenant; but it is open, to the landlord to repudiate the relation, to treat him as a trespasser and to evict him as such; on-the other hand, it is open to the tenant to indicate at the time he encroaches, that he intends to hold the encroached lands for his own exclusive benefit and not to hold them as he held the lands to which they are adjacent.
A little further on it is said:
The extent of the dispossession depends on the; extent of the claim of right under which possession by the trespasser is obtained and kept; where such claim is restricted to a limited interest in the, property, the dispossession is limited to that extent only.
Thus a tenant may, when pleading prescriptive title without pleading general ownership, in a suit for ejectment success. fully plead his adverse possession to the extent of the interest claimed by him. I Again it is said:
The nature and effect of possession must depend upon the nature and extent of the rights asserted by the overt conduct or express declaration of the person relying on it.
If that is the principle, and with great respect, I would like to express my agreement with what the learned Judge there said, then the khorposhdars have been found to assert throughout that they had complete rights in respect of the timber as well as the jungle produce in the waste area of the mauza. As they have consistently assented and exercised these rights for much longer than twelve years openly and to the knowledge of the plaintiff, I am of opinion that Section 28, Limitation Act, is applicable to this case and that the right of the plaintiff in the timber of the jungle has been lost to him by adverse possession.
It has been argued for the appellant that this view of the grant and of the nature of defendants'' possession is ''inconsistent with the pleading of the defendants, and that they should not be allowed to succeed on, a case not raised in their pleading. I have at an earlier place in this judgment summarized the pleadings and I consider it