JUDGMENT 1. These 88 appeals arise out of as many suits for declaration of title to immoveable property and for recovery of possession thereof. The case for the Plaintiff-Respondent may be briefly stated. He alleges that in 1799 an estate was created from which a putni tenure was, carved out later on, on some date not known, but the putni was sold in 1807, and the purchaser Romesh Chandra Mukerji on the 26th of June 1804 gave a kabuliyat to the zamindar Maharaja Tej Chandra. In execution of a decree for arrears of rent obtained by the proprietor against the putnidars the tenure was sold under the provisions of the Bengal Tenancy Act on the 28th November 1899 and passed into the hands of the Plaintiff. The Plaintiff asserts that the Defendants in the various suits are in possession of different parcels of land within the ambit of the putni taluk purchased by him and that they have no right to continue in occupation. He accordingly prays that his title by purchase may be declared and that the Defendants may be ejected as trespassers. According to the Plaintiff the cause of action in each of these suits arose on the 28th November 1899, the date of the auction purchase, and no question of limitation could arise as the suits have been instituted within 12 years from the date of such purchase. 3. The Defendants resist the claim on the ground amongst others that they hold under rent-free grants and that in any event the claim of the Plaintiff is barred by limitation. Their case in substance is that they have been in possession of these lands from the time of their predecessors and that their possession can be traced back to at least 1790, long before the creation of the putni as also the formation of the permanently settled estate out of which the putni was carved. The District Judge has found in favour of the Plaintiff that the Defendants have failed to establish their rent-free tenure and that the suits are not barred by limitation inasmuch as they have been commenced within 12 years of the date when the sale became final and conclusive within the meaning of Art. 121 of the Second Schedule to the Indian Limitation Act. On behalf of the Defendants-Appellants the decision of the District Judge has been assailed on the merits and the view taken by him upon the question of limitation hag been attacked as obviously unsound. It is not necessary for our present purposes to examine the merits of the cases, because we have arrived at the conclusion that the suits are barred by limitation. The District Judge has held that Art. 121 of the 2nd Schedule of the Indian Limitation Act is applicable to the cases. That article provides that suits to avoid incumbrances in a putni taluk sold for arrears of rent must be commenced within 12 years from the date when the sale becomes final and conclusive. We shall for the purposes of the present argument and for that purpose alone assume that Art. 121 applies to a case in which a suit has been instituted by a purchaser of a putni taluk at a sale held under the provisions of the Bengal Tenancy Act. The question on this assumption arises whether the suits before us are suits to avoid incumbrance in a putni taluk. The District Judge has held on the authority of the decision in Naffer Chandra v. Rajendra Lal ILR 25 Cal. 167 (1897), that Art. 121 is applicable. That decision formulates the proposition that the interest acquired by an adverse possessor of land included in a putni taluk is an incumbrance within the meaning of Art. 121 of the 2nd Schedule of the Limitation Act. This view is in accord with the principle recognized in the cases of Woomesh Chandra Goopta v. Raj Narain Roy 10 W. R. 15 (1868), Khanto Moni Dassi v. Bijoy Chandra ILR 19 Cal. 187 (1892) and Karim Khan v. Broja Nath Das ILR 22 Cal. 244 (1895). It is very material to observe however that the adverse possession contemplated in these cases is possession which commenced after the creation of the putni tenure. These cases are founded on the principle laid down in sec. 11 of Reg. VIII of 1819. 187 (1892) and Karim Khan v. Broja Nath Das ILR 22 Cal. 244 (1895). It is very material to observe however that the adverse possession contemplated in these cases is possession which commenced after the creation of the putni tenure. These cases are founded on the principle laid down in sec. 11 of Reg. VIII of 1819. The first clause of that section declares that any taluk or saleable tenure, that may be disposed of at a public sale under the rules of the Regulation for arrears of rent due on account of it, is sold free of all encumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives or assignees, unless the right of making such encumbrances shall have been expressly vested in the holder by a stipulation to that effect, in the written engagements under which the said taluk may have been held. No transfer by sale, gift or otherwise, no mortgage or other limited assignment is permitted to bar the indefeasible right of the zamindar to hold the tenure of his creation answerable in the state in which he created it for the rent which is in fact his reserve property in the tenure except the transfer or assignment should have been made with a condition to that effect under express authority obtained from such zamindar. 4. The principle consequently is that the purchaser of a putni taluk at a sale held under Reg. VIII of 1819 takes the taluk in the state in which it was initially created, and the judicial decisions to which we have already referred lay down the doctrine that the purchaser takes the property not free merely of all incumbrances that may have accrued upon the tenure by act of the defaulting proprietor, his representatives or assignees but also free of the interest acquired by an adverse possessor who has been able to acquire such interest by the action of the defaulting proprietors. This doctrine is plainly limited in its application to cases where the adverse possession commenced after the creation of the putni. 5. This doctrine is plainly limited in its application to cases where the adverse possession commenced after the creation of the putni. 5. In a case in which the proprietor of the estate is out of possession he cannot merely by the device of the creation of a subordinate taluk arrest the effect of the adverse possession which has already commenced to run against him and such possession would be effective hot only as against the subordinate tenure-holder, but also as against the superior proprietor. Consequently, if the Plaintiff relies upon Art. 121 of the 2nd Schedule of the Indian Limitation Act, he has to establish that the encumbrance which he seeks to annul is due to adverse possession which commenced after the creation of the putni. The District Judge has not found that in the cases before us the adverse possession of the Defendants and their predecessors commenced after the creation of the putni. On the other hand there is ample evidence that the adverse possession of the Defendants and their predecessors commenced before the creation of the putni. There are traces on the record, to show that there had been assertions of hostile title before the putni itself was created. On behalf of the Plaintiff-Respondent however it has been suggested that there is some evidence of ancient possession of the disputed land by the proprietor of the estate. But before we deal with the evidence to which allusion has been made in the course of argument it may be pointed out that the Plaintiff, before he can succeed, must prove that the proprietor was in possession when the putni was created. In order to establish that the proprietor was in possession at that time, it has been argued that we should presume that possession follows title. In our opinion that doctrine has no application to a case of this description. No doubt, it was pointed out by their Lordships of the Judicial Committee in the case of Runjeet Ram v. Gobordhan Ram 20 W. R. 25 (29) (1873) that in the decision of the question of limitation, if there is conflicting evidence on both sides, the Court may presume that possession was with the party whose title has been established. No doubt, it was pointed out by their Lordships of the Judicial Committee in the case of Runjeet Ram v. Gobordhan Ram 20 W. R. 25 (29) (1873) that in the decision of the question of limitation, if there is conflicting evidence on both sides, the Court may presume that possession was with the party whose title has been established. But it does not follow that when the Plaintiff has to establish possession at a particular point of time he is entitled to call upon the Court to presume that because his title has been established, possession must be presumed to have been with the holder of the title at that specific period of time. This contention indeed is clearly opposed to the decision of the Judicial Committee in the case of Mohima Chandra v. Mohesh Chandra L R. 16 I. A. 23 : S.C. I. L. R. 16 Cal. 473 (1888), where their Lordships pointed out that it is not enough for the Plaintiff in an action in ejectment to establish his title or his possession at some remote time; but that it is essential for him to prove that he was in possession within 12 years antecedent to the suit. To the same effect are the decisions in Pudma Coomari Debi v. Court of Wards L. R. 8 I. A. 229 (1881), Jafar Husain v. Mashqu Ali I. L. R. 14 All. 193 (1892), Hemanta Kumari v. Jagadindra Nath 10 C. W. N. 630 (1906). We have next been asked to hold that the grant of the putni tenure itself is evidence of possession; and in support of this argument we have been asked to consider the terms of the putni kabuliyat. Our attention has also been invited to the cases of Attorney-General v. Emerson (1891) App. Cas. 649, 658, Malcomson v. O'Dea 10 H. L. C. 593 (1863), Briston v. Cormicon 3 App. Cas. 641 668 (1878) and Blandy Jenkins v. Dunraven (1899) 2 Ch. 121 to show that ancient documents produced from proper custody and by which any right to property purports to have been exercised are admissible even in favour of the grantor or his successors, in proof of possession. Cas. 641 668 (1878) and Blandy Jenkins v. Dunraven (1899) 2 Ch. 121 to show that ancient documents produced from proper custody and by which any right to property purports to have been exercised are admissible even in favour of the grantor or his successors, in proof of possession. This doctrine is justified on the principle that documents of this character may rightly be treated as presumptive evidence of possession, because ancient possession is incapable of direct proof by witnesses and such documents are themselves acts of ownership, real transactions between man and man, intelligible upon the footing of title or at least of a bond fide, belief in title, since in the ordinary course of things men do not execute such documents without acting upon them. This principle plainly has no application to the circumstances of the present cases. An examination of the putni kabuliyat does not show that there is any assertion that the grantor of the putni at the time was in possession of every parcel of land comprised within the boundaries of the putni, nor is there any allegation in the document that the grantee of the taluk obtained actual possession of every piece of land within the tenure granted to him. 6. It has finally been argued that the thak map of 1852 is evidence of possession, and that witnesses have been called to speak to possession of two villages by a lessee from the putnidar. The evidence however is of the vaguest description and does not show that the putnidar who was the owner of the estate was in actual possession of any particular parcel of land now in dispute. In these circumstances we are of opinion that the Plaintiff has not established that the possession of the Defendants commenced after the creation of the putni or that the proprietor of the estate was in possession at the time when the putni was granted. Consequently the interest acquired by the Defendants cannot be deemed to be an incumbrance within the meaning of Art. 121 nor it is an encumbrance within the meaning of the first clause of sec. 11 of Reg. VIII of 1819. In this view the decrees made by the District Judge cannot be supported. 7. It is clear however that the case as made in the plaint is based on an entirely erroneous assumption. 11 of Reg. VIII of 1819. In this view the decrees made by the District Judge cannot be supported. 7. It is clear however that the case as made in the plaint is based on an entirely erroneous assumption. The Plaintiff has come into Court on the allegation that his cause of action arose on the 20th November 1899 when he purchased the property at a sale held under the provisions of the Bengal Tenancy Act. This statement was material for the purposes of the case, because under sec. 50, cl. (d), of the CPC of 1882, it was incumbent on the Plaintiff to embody in his plaint a plain and concise statement of the circumstances constituting the cause of action and where and when it arose. It was further his duty, if the cause of action arose beyond the period ordinarily allowed by any law for instituting the suit, to show in his plaint the ground upon which exemption from such law was claimed. In the cases before us the Defendants have been unquestionably in possession for more than 12 years antecedent to the suit. The Plaintiff therefore had to make out an affirmative case to take his suit out of the statute of limitation, and he based his case on the ground that the cause of action arose on the 28th November 1899 on the assumption that Art. 121 of the Second Schedule of the Indian Limitation Act was applicable. 8. But it cannot be disputed that the cause of action did not arise on the 28th November 1899. The Plaintiff made his purchase at a sale held in execution of a rent decree under the Bengal Tenancy Act. Under sec. 159 of Bengal Tenancy Act, he made his purchase with power to annul the interests defined as incumbrances in sec.161. Clause (a) of that section lays down that the term encumbrance used with reference to a tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in sec. 160. Clause (a) of that section lays down that the term encumbrance used with reference to a tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in sec. 160. With reference to the use of the term encumbrance in this section, it was held in the cases of Gocool Bagdi v. Debendra Nath Sen 14 C. L. J. 136 (1911) and Arsadulla v. Mansubah 16 C. L. J. 539 (1912) that encumbrance includes a statutory title acquired by a trespasser by adverse possession of the land of the defaulting tenure, provided such act of possession commenced after the tenure had been created. It was further held that such encumbrance cannot be annulled in any manner other than that provided in sec. 167 of the Bengal Tenancy Act. Consequently upon the facts of the case it is clear that before the Plaintiff can succeed he must establish that the interest acquired by the Defendants by adverse possession constitute an encumbrance within the meaning of sec. 161 of the Bengal Tenancy Act and are capable of annulment in the manner provided in sec. 167. The difficulty of the Plaintiff, if this view of the matter be adopted, is that he has not established that the adverse possession of the Defendants and their predecessors commenced after the creation of the putni taluk. But even if he had succeeded in establishing that such adverse possession commenced after the creation of the putni taluk, before he could succeed, he would have to prove that under sub-sec. (1) of sec. 167, he had annulled the encumbrances by service of notice within one year from the date of the sale or the date on which he first had notice of the encumbrances. In the plaint it was stated that notices had been served as contemplated by sub-sec. (1) of sec. 167 on the 5th October 1907. But the Plaintiff asserted that such service of notice was unnecessary and the Courts below did not investigate whether the notices were actually served; and if served, whether they were served within one year from the date on which the Plaintiff first had notice of the encumbrances. (1) of sec. 167 on the 5th October 1907. But the Plaintiff asserted that such service of notice was unnecessary and the Courts below did not investigate whether the notices were actually served; and if served, whether they were served within one year from the date on which the Plaintiff first had notice of the encumbrances. It is not disputed that the notices, which are alleged to have been served on the 5th of October 1907, were not served, if served at all, within one year from the date of the sale, which took place as already stated on the 28th November 1899. If therefore the interest of the Defendants constituted an encumbrance the Plaintiff would have to establish that he had notice of the encumbrance within one year prior to the 5th October 1907. The Courts below have not found that the Plaintiff had first notice of the interest of the Defendants within one year prior to the 5th October 1907. On the other hand it is extremely improbable, to say the least, that when so many persons in so many suits were in open and peaceable occupation of so many parcels of land that the Plaintiff should not have discovered till after 5th of October 1906, that is, nearly seven years after he had purchased the putni at the execution sale, that the Defendants claimed to hold under an adverse title. The slightest enquiry, such as a prudent owner would in ordinary course have made, would have disclosed that the occupants of the land claimed to hold them without payment of rent to the proprietor or his representatives. Consequently if the provisions of the Bengal Tenancy Act are applied, as they must be applied, the position of the Plaintiff becomes even more difficult than it is, if reliance is placed only upon Art. 121 of the Second Schedule to Indian Limitation Act on the groundless assumption that the sale took place under the provisions of the Putni Regulation. We may add that the restriction mentioned in sec. 195 (e) of the Bengal Tenancy Act does not touch the question of the applicability of sec. 167 to the lands in suit. The result is that these appeals must be allowed, the decree of the District Judge set aside and the suits dismissed with costs in all the Courts.