JUDGMENT Mukherjea, J. - This appeal is on behalf of the Defendant. It arises out of a suit commenced by the Plaintiff for assessment of fair rent in respect of a plot of land measuring about 256 acres and described in Schedule Kha to the plaint. There was a prayer also for recovery of damages for use and occupation of the said land for a period of three years and odd prior to the institution of the suit and a further claim to nazar or selami money amounting to Rs. 77-8 as. The Plaintiff's case was that the land in suit which is recorded in C.S. Khatian No. 541 of village Sandipur appertained to revenue-paying estate No. 1050 of the Murshidabad Collectorate. The Defendant was occupying the land without taking any settlement from the landlord and without paying any rent for the same and during the last settlement operations he was recorded as a raiyat having a rent free brahmatter title to the land for which no rent was payable to the landlords. The Plaintiff averred that the entry was wrong and, that as a matter of fact, the Defendant had neither any lakheraj or rent-free title to the disputed property which was within the ambit of the mal estate belonging to the Plaintiff. As the Defendant refused to take any settlement of the lands or pay any rent for the same the Plaintiff was obliged to institute the present suit. The defence raised by the Defendant was substantially of a three-fold character. In the first place, it was contended that the Defendant had a revenue-free title to the land in suit which did not appertain to Touzi No. 1050 and was not included in any mal estate belonging to the Plaintiff. The land, it was said, was being held by the Defendant's predecessors in lakheraj right from before the permanent settlement and no revenue was ever assessed by the Government in respect of the same. 2. The second ground taken was that the Defendant was never a tenant under the Plaintiff with regard to the land in suit and the entry in the C.S. records describing him as a raiyat was not correct. 2. The second ground taken was that the Defendant was never a tenant under the Plaintiff with regard to the land in suit and the entry in the C.S. records describing him as a raiyat was not correct. As the Defendant and his predecessors were in possession of the land in assertion of lakheraj right to the knowledge of the Plaintiff and his predecessors for more than 12 years, the Plaintiff's claim for assessment of rent, it was said, was barred by limitation. 3. The third ground raised was to the effect that the rate at which assessment of rent was sought for was exorbitant and improper and, at any rate, the Plaintiff was not entitled to get damages for use and occupation or any nazar for the lands in suit. 4. The trial Court substantially decided the case in favour of the Plaintiff. The lakheraj right which was claimed by the Defendant was negatived and the land was assessed to rent at the rate of one rupee per bigha. The Plaintiff was also awarded damages for use and occupation amounting to Rs. 27-8 only though his claim for nazar was dismissed. This decision was affirmed in appeal by the Subordinate Judge of Murshidabad and it is against this judgment of the Subordinate Judge that the present second appeal has been preferred. 5. It has been found by both the Courts below that the lands in suit do lie within the ambit of the revenue-paying estate No. 1050 of the Murshidabad Collectorate. The lands of this Touzi were formerly in possession of certain Gosains who held them under an invalid lakheraj grant. This grant was resumed by the Government sometime in 1844 and a new Touzi was formed, all the lands comprised in the invalid lakheraj, being assessed to revenue. This finding arrived at by the Courts below is sufficient to negative the plea of lakheraj title which was put forward by the Defendant in his written statement. It is not the case of the Defendant that there was any rent-free grant in favour of himself or his predecessors made by the proprietor of this Touzi and no such grant, which must necessarily be made subsequent to 1844, could possibly be presumed in the circumstances of the present case. 6. It is not the case of the Defendant that there was any rent-free grant in favour of himself or his predecessors made by the proprietor of this Touzi and no such grant, which must necessarily be made subsequent to 1844, could possibly be presumed in the circumstances of the present case. 6. The only point that has been raised on behalf of the Appellant in this appeal is, that the Plaintiff's suit to have assessment of rent in respect of the lands in suit is barred by limitation by reason of adverse possession exercised by the Defendant and his predecessors for over 12 years; and the whole controversy centres round a point as to whether the facts admitted and found do make out a case of adverse possession in favour of the Defendant. 7. It cannot be disputed, I think, that a suit of this description is governed by Art. 144 of the Limitation Act. It could not possibly come under Art. 130 as the lands are held not to be rent-free. It could not come under Art. 131 either as that article pre-supposes the establishment of a relationship of landlord and tenant between the parties. I am unable to agree with the learned Advocate for the Respondent that the Defendant ever occupied the position of a tenant with regard to the Plaintiff or his predecessors in respect of these lands. It is undoubtedly open to a proprietor to treat the occupant of lands belonging to him as his tenant, but he can do so only so long as his own rights are not extinguished by adverse possession. During this period it is discretionary with the proprietor either to treat the squatter as a tenant or to turn him out as a trespasser. But once this period has run out, it is no more open to him to sue the occupant for assessment of rent than to institute a suit for eviction against him. Vide Gagan Chandra Chukerbutty v. Maharaja Birendra Kishore Manikya Bahadur 22 C.L.J. 185 (1914). 8. But once this period has run out, it is no more open to him to sue the occupant for assessment of rent than to institute a suit for eviction against him. Vide Gagan Chandra Chukerbutty v. Maharaja Birendra Kishore Manikya Bahadur 22 C.L.J. 185 (1914). 8. It is well settled that in order to constitute adverse possession it has to be established that the possession of the Defendant was in denial of the Plaintiff's right and that it was adequate in continuity, in publicity and in extent The lower Appellate Court is of opinion that there was no assertion of hostile title to the knowledge of the Plaintiff prior to the settlement and survey operations, and, as the suit was instituted within 12 years from that time, it was well within the period of limitation. In cur opinion, the learned Subordinate Judge did not appreciate the law quite correctly. In order to constitute adverse possession, it is not necessary that the acts of possession should be exercised to the knowledge of the Plaintiff. As was observed by the Judicial Committee in Secretary of State for India in Council v. Debendra Lal Khan L.R. 61 I. A. 78 S.C. 38 C.W.N. 285 (1933): It is sufficient that the possession be overt and without any attempt at concesiment so that the person against whom time is running, ought, if he exercises due diligence, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. 9. Mr. Mukherji who appears for the Appellant has argued before us that in this case there was an assertion of hostile title as early as in the year 1844 when the resumption proceedings took place and the possession of the Defendant might be deemed to be adverse from that time. The resumption chitta is an Exhibit in this case and we have gone through it very carefully. It appears that one Chaitanya Gosain was a grantee of certain lakheraj lands covering an area of about 263 bighas of land. The resumption proceedings were started in the year 1838 and notice of resumption was served upon Krishna Mohan Goswami who happened to be the possessor of the lands at that time. It appears that one Chaitanya Gosain was a grantee of certain lakheraj lands covering an area of about 263 bighas of land. The resumption proceedings were started in the year 1838 and notice of resumption was served upon Krishna Mohan Goswami who happened to be the possessor of the lands at that time. Krishna Mohan did not contest the proceeding and eventually an order of resumption was made sometime in the year 1841. It appears that at that time Krishna Mohan was dead and five persons, viz., Braja Mohan Goswami, Ram Chandra Goswami, Krishna Gobinda Goswami, Krishna Lal Goswami, and Pitambar Goswami were in possession of the lands, presumably as successors to the original grantees and an offer was made to them by the resumption authorities to accept settlement of the lands at the revenue fixed by the latter. This, however, they declined to take, and on the other hand, they applied for malt-ham. The Deputy Magistrate, it appears, from this paper, made a recommendation to the Collector that this prayer might be granted and malikana allowed to these persons. We do not know what happened ultimately, but if, as a matter of fact, these Gosains were contented to accept malikana in respect of the resumed lands which were settled in proprietary right with some other person, the proprietor would certainly have the right to get possession of all the lands comprised in the invalid lakheraj, and if the ex-lakherajdars still retained possession of some lands their possession would prima facie be adverse to the zemindar. The Defendant has, of course, got to show that he is the successor of those people who held the lakheraj previously and the possession since the time of his predecessors was continuous and uninterrupted. In our opinion, this matter requires further investigation and as the lower Appellate Court does not seem to have approached the question of limitation from the proper stand-point, we think it proper that this appeal should be re-heard on that point and that point only. In our opinion, this matter requires further investigation and as the lower Appellate Court does not seem to have approached the question of limitation from the proper stand-point, we think it proper that this appeal should be re-heard on that point and that point only. We affirm the finding of the lower Appellate Court that the Defendant has no lakheraj or rent-free title to the lands in suit and we remit the case to that Court in order that it may determine on the materials as there are already on the record or on such further evidence as may be adduced by the parties as to whether the Defendant has established that he or his predecessors were in adverse possession of those lands for more than 12 years which would make the Plaintiff's suit for assessment of rent time-barred under Art. 144 of the Limitation Act. It would certainly be open to the Plaintiff to show that the elements necessary to constitute adverse possession are not present in this case or there are some other circumstances, as for example, a revenue-sale purchase, which would make a title by -adverse possession not binding on him. We need not express any opinion on these points. We send the case to the lower Appellate Court in order that it may be heard and disposed of in accordance with law in the light of the observations made above. We make no order as to costs in this appeal. Further costs will abide the result. Lodge, J. I agree.