JUDGMENT : B.K. Patra, J. - The dispute in this case relates to one decimal of land with a house standing thereon comprised in plot No. 332 of C.S. Khata No. 380 standing in the name of Chandanadar Samanta Radha Prasanna Das. One Mahant Karunakar Das was the sikmi tenant in respect of the entire Khata. Defendant No. 1 was inducted into the disputed house as tenant by Mahant Karunakar Das. The Mahant had mortgaged the disputed plot 332 with Gobinda Sahu and Gangadhar Sahu. After the death of the Mahant in 1933, the mortgagees filed Mortgage Suit No. 301 of 1934, against one Ram Ram Das alleged to be the Chela of Mahant Karunakar Das and obtained a decree and in execution thereof plot No. 332 was sold in Court auction and purchased by Gangadhar Sahu on 18-6-1938. Gangadhar took possession of the disputed plot on 10-8-1938. It is alleged that after this purchase, Defendant No. 1 who was occupying the house as a tenant under the Mahant attorney in favour of Gangadhar. On 9-10-1950, Gangadhar's widow Defendant No. 4 transferred her right in the disputed plot No. 332 in favour of Defendant No. 3. That IS how Defendant No. 3 claims title to the disputed property. 2. The Plaintiff claims title to the disputed property in the following circumstances: According to him, the sikimi tenant Karunakar Das died without leaving any heir and therefore the superior landlord Radha Prasanna Das took khas possession of the disputed property sometime before 1941 and executed a permanent registered lease exhibit 6 dated 22-11-1945 in favour of Defendant No. 1 who was till then occupying the property as a tenant. As Defendant No. 1 fell into arrears of rent, a rent suit was filed against him by Radha Prasanna Das and in execution of the decree obtained therein, the disputed property was put up for sale and was purchased by Defendant No. 5. On 19-8-1950, Defendant No. 5 took delivery of possession of the property under Ext. 1(0.) and on 26.7.1956 sold the same to the Plaintiff. 3. The Plaintiff thereafter instituted a suit claiming inter alia declaration of title in respect of the disputed property which was described in Schedule 'Ka' of the plaint and for recovery of arrears of house rent from Defendant No. 1. That suit was dismissed by the trial Court. 1(0.) and on 26.7.1956 sold the same to the Plaintiff. 3. The Plaintiff thereafter instituted a suit claiming inter alia declaration of title in respect of the disputed property which was described in Schedule 'Ka' of the plaint and for recovery of arrears of house rent from Defendant No. 1. That suit was dismissed by the trial Court. As against that decision, the Plaintiff preferred M.A. 47 of 1960 in the Court of the Subordinate Judge which was also dismissed. As against this, Second Appeal No. 78 of 1962 was filed in this Court. The appeal was allowed, the judgment of the lower appellate Court was set aside and the case was remanded to him for fresh disposal in the light of certain observations made therein. While doing so, the learned Judge held that the following findings must be taken to be concluded and should not be re-agitated: (1) that the decree in Mortgage Suit No. 301 of 1934, obtained by Gangadhar and his brother is not valid and consequently the sale held in execution of the decree did not convey and valid title to the purchaser Gangadhar Sahu ; (2) that notwithstanding the above, Gangadhar got delivery of possession of the disputed property on 10.8-1938; and (3) that a valid title was conferred upon Defendant No. 1 under Ext. 6 dated 22-11-1945. 4. Two rent receipts exhibits A/2 and A/2-a dated 11-7-1943 and 9-3-1945 respectively had been produced by Defendant No. 3 and it was argued in the second appeal that these receipts would establish that Radha Prasanna had recognised Defendant No. 3 as a tenant prior to the grant of lease under Ext. 6. As Defendant No. 3 did not set up such a case in the written statement, it was held that he cannot be permitted to canvass it now. The appeal was remanded as the lower appellate Court did not record a finding as to whether Defendant No. 5 was given actual delivery of possession under Ext. 1/a dated 19-8-1950 or it was a mere paper transaction. The appeal was remanded as the lower appellate Court did not record a finding as to whether Defendant No. 5 was given actual delivery of possession under Ext. 1/a dated 19-8-1950 or it was a mere paper transaction. If the actual delivery of possession was given to Defendant No. 5, then the title having been found in favour of the Plaintiff, the Plaintiff's suit is bound to succeed unless it is held that the husband of Defendant No. 4 and after him his successor-in-interest, that is, Defendant No. 4 was in long continuous possession from 10-8-1938 till 19.8.1950 so as to acquire a title by adverse possession. If, on the other hand, it was a mere paper transaction, possession from 19-8-1950 till the date of institution of the suit would also be taken into consideration. The lower appellate Court was also directed to consider whether by payment of rent under Exhibits A-2 and A-/2a, Gangadhar, the husband of Defendant No. 4 recognised the title of the landlord and whether in such a case adverse possession can at all be set up, and if set up, from which date it started. 5. The learned lower appellate Court held that although Gangadhar in execution of his mortgage decree took delivery of possession of the property on 10-8-1938, he aid not actually possess the land thereafter but let it out to Defendant No. I to possess it. In the circumstances, if Gangadhar had a valid title to the property, possession of the same through his tenant could be construed as possession by him. But in view of the finding which has become final that Gangadhar had not acquired a valid title to the disputed property, he is only in the position of a trespasser. Possession by a trespasser must be actual physical possession to enable him to acquire title by prescription. In such circumstances, possession of Defendant No. 1 cannot be construed as possession of Defendant No. 4. The lower appellate Court further held that the possession which Defendant No. 5 had obtained on 19-8-1950 was actually physical possession of the property. He, therefore, passed a decree declaring the Plaintiff's title to the disputed property and allowing his claim for recovery of arrears of rent amounting to Rs. 90/- from Defendants 1 and 1 Ka. The present second appeal which is filed by Defendant No. 3 is directed against that decision. 6. He, therefore, passed a decree declaring the Plaintiff's title to the disputed property and allowing his claim for recovery of arrears of rent amounting to Rs. 90/- from Defendants 1 and 1 Ka. The present second appeal which is filed by Defendant No. 3 is directed against that decision. 6. The position therefore is this: Defendant No. 4, 8 husband got possession of the disputed property on 10-8-1938, although he had no title thereto. He and after his death his wife Defendant No. 4 possessed the land through his tenant Defendant No. 1 till 19.8.1950, that is, for a period of a little over twelve years. The question is whether Defendant No. 4 acquired title to the property by adverse possession. There cannot be any dispute that if Gangadhar and his wife Defendant No. 4 were in Khas possession of the property during this period, they would have obtained a perfect title thereto by adverse possession. The point for consideration is whether such a title can be acquired while the trespasser is not in Khas possession but is in possession through his tenant. It is also now established that during this period of more than twelve years, Defendant No. 4 used to receive rent from Defendant No. 1, sometimes amiably and sometimes through Court. It is contended on behalf of the Plaintiff Respondent that a trespasser cannot invoke the aid of the principle of constructive possession and that the possession of a trespasser ill limited to the lands which are actually in his physical possession. But a question somewhat similar to the one I am asked to decide in this case came up for consideration before their Lordships of the Privy Council in the case of Secretary of State for India v. Krishnamoni Gupta ILR 29 (1902) Cal. 518. The short facts of that case may be stated. The lands in disputed in that case admittedly formed part of the permanently settled estate of the Mozumdars. By a change in the course of the adjoining river, the disputed lands were submerged and were re-formed in the year 1859 when the Government claimed these lands as an accretion to the adjoining Government estate. The lands in disputed in that case admittedly formed part of the permanently settled estate of the Mozumdars. By a change in the course of the adjoining river, the disputed lands were submerged and were re-formed in the year 1859 when the Government claimed these lands as an accretion to the adjoining Government estate. Thereupon, the Mozumdars took an ijara settlement of these lands from Government for a period of ten years from 1st May, 1859 to 30th April, 1869 and entered into possession under the ijaras and paid to the Government the rent reserved therein. After the expiry of the aforesaid period of ten years, the ijaras were renewed from year to year until the year 1882. Subsequently the Mozumdars instituted a suit to recover possession of these lands on the ground that it was a reformation on the site of their permanently settled estate and that they have been wrongfully ousted therefrom by Government. Government defended the action on the ground that they acquired right thereto by adverse possession contending that the possession of the Mozumdars under the ijaras granted to them was in fact and in law the possession of the Government claiming proprietary right in the disputed lands and that such possession was in exclusion of and adverse to the claim of the Mozumdars as proprietors thereof. Their Lordships upholding the contentions of the Government observed: It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession and estopped from disputing the title of the Government. But there is no doubt that the possession of the tenant is in law the possession of the landlord or superior proprietor, and it can make no difference whether the tenant be one who might claim adversely to his landlord or not. I am therefore unable to accept the contention of the Plaintiff Respondent that as Defendant No. 4 was not in physical possession of the disputed property) but was in possession of the property only through a tenant, the tenant's possession would not enure to her benefit in her claim for adverse possession. True it is, that in the year 1945, Defendant No. 1 himself acquired a valid title to the property under Ext. True it is, that in the year 1945, Defendant No. 1 himself acquired a valid title to the property under Ext. 6, but in spite of it, he continued to be in possession of the property as a tenant under Defendant No. 4, just in the same manner that the Mozumdars in the Privy Council case referred to above in spite of being owners of the property in dispute in that case continued to remain in possession of their own property as ijaradars under the Government. I, therefore, hold on the authority of the Privy Council decision referred to above that Defendant No. 4 acquired a title to the disputed property by adverse possession by 11-8-1950, and when on 11.8-1950 she transferred her right therein to Defendant No. 3, the latter acquired valid title to the disputed property. It has already been stated that in execution of a money decree obtained by Radha Prasanna Das against Defendant No. 1, the disputed property was pub to sale and purchased by Defendant No. 5 and it is alleged that he took delivery of possession on 19.8 1950. The lower appellate Court finds that it was not a mere paper transaction hut actual physical delivery of possession was given to Defendant No. 5. In view of my finding that by 11-8-1950, Defendant No. 4 had prescribed a good title in herself in respect of the suit property by adverse possession, it follows that when Defendant No. 5 is said to have taken possession of the property on 19.8.1950, such title as he had acquired under the auction purchase had been lost and that consequently when he purported to send the disputed property to the Plaintiff on 26.7-1956, the Plaintiff did not acquire a valid title thereto. The suit giving rise to this appeal was filed in May, 1957. In the circumstances, it is immaterial so far as the present suit is concerned, where no relief is claimed either for confirmation of possession or for delivery of possession to decide the question whether Defendant No. 5 got actual Khas possession of the property or whether the Plaintiff is now in Khas possession thereof. It is sufficient to say that the Plaintiff has not acquired any title to the property in respect of which a declaration of title is sought for in this case. 7. It is sufficient to say that the Plaintiff has not acquired any title to the property in respect of which a declaration of title is sought for in this case. 7. There is only one more point to be decided and it release to the effect of the admitted payment of rent by Defendant No. 4 to the superior landlord Radha Prasanna Das under the two rent receipts Exts. A-2 and A-2/a dated 11-7-1943 and 9.3.1945 respectively. It is contended on behalf of Appellant Defendant No. 3 that what his predecessor Defendant No. 4 was prescribing for was only the interest which Mahant Karunakas Das had in the property, namely that of a sikmi tenant and that the superior title of Radha Prasanna Das was never in question. In the circumstances, payment of rent to the superior landlord Radha Prasanna is in no way in consistent with Defendant No. 4's claim as sikmi tenant under Radha Prasanna. Such a contention appears to me to be well-founded and it cannot therefore be held that payment of rent under the two receipts has in any way stood in the way of Defendant No. 4 prescribing the title of a sikmi tenant in respect of the disputed property by adverse possession. 8. In the result, the Plaintiff' suit so far as it relates to the disputed property is bound to fail. I would accordingly allow this appeal, set aside the judgment and decree passed by the learned Subordinate Judge and dismiss the Plaintiff's suit in so far as it relates to the disputed plot No. 332 (plaint 'Ka' schedule of the property). In the circumstances, parties will bear their own costs of this Court and of the first appellate Court. Final Result : Allowed