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Sayad Nyamtula Vs. Nana Valad Faridsha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom424
AppellantSayad Nyamtula
RespondentNana Valad Faridsha
Excerpt:
.....on this question of fact, upon the right determination of which the decision as to limitation..........appellate court held that, as the plaintiff had not been in possession for twelve years the suit was barred. but that is not the law, as found in article 144 of schedule ii of the limitation act, which prescribes that the period shall run from the date when the possession of the defendant becomes adverse to the plaintiff. it is clear that, until a defendant has possession, he cannot have adverse possession; and if the defendant in the present case was out of possession at the time of the sale, and subsequently obtained possession, it can only have been adverse from the time when he entered on the property--ram prosad janna v. lakhi narain i.l.r. cal. 197 and sheo prasad v. udai singh i.l.r. all. 718.4. we must, therefore, reverse the decisions of the courts below, and remand the case for.....
Judgment:

Birdwood, J.

1. We are of opinion that the lower Costs have rightly held that the time occupied by the plaintiff in proceedings before a conciliator who had no jurisdiction to deal with the dispute between him and the defendant cannot be excluded under Section 48 of the Dekkhan Agriculturists' Relief Act XVII of 1879, in computing the period of limitation prescribed for the present suit by Article 144 of Schedule II of the Limitation Act, 1877: for, under Section 48 of the Dekkhan Agriculturists' Relief Act, it is only the period intervening between the application made by the plaintiff under Section 39 and the grant of the certificate under Section 46 which can be so excluded and under Section 89, the conciliator to whom application is to be made, must be the one appointed for the local area in which the agriculturist is residing. In the present case the plaintiff applied to, and obtained a certificate from, the conciliator appointed for the local area in which the land in dispute is situated. His application was not, therefore, such an application as is content plated in Section 48. For the same reason the certificate that the plaintiff obtained is not such a certificate as is required by Section 47 of the Act.

2. This objection was not taken in the Courts below; but we feel bound to consider it here, as it is one affecting the jurisdiction of the Courts below. We do not, however, think it absolutely fatal to the plaintiff's suit; for so soon as such a defect in a certificate becomes apparent, the proper course is for a Court to stay proceedings, to enable the plaintiff to make good the defect by producing a certificate from a conciliator competent to deal, with Jus application under Section 39 of the Act. This was the course followed in Raghunath Dadaji Khade v. Anant Govind Bhopale Prined Judgment for 1882 p. 368, and should, we think, be now adopted by the Courts below, to which, we are of opinion, the suit must be remanded for retrial (after a proper certificate has been produced), because the question of limitation has been wrongly dealt with by both those Courts.

3. The suit is one by a vendee to recover possession of land from his vendor. The sale took place on the 3oth January 1872. The plaint was filed on the 20th February 1884. If the vendor was in possession at and from the time of the sale, his possession must have been adverse for more than twelve years, and the suit would be barred--Anand Coomari v. Ali Jamin I.l.R. Cal. 229. The defendant denies that he has been in possession at all. The plaintiff says in his deposition that, at the time of the sale, the defendant was in possession. The parties were clearly at issue on this question of fact, upon the right determination of which the decision as to limitation depended. But though the issue was raised, neither of the Courts below decided the question. The lower appellate Court held that, as the plaintiff had not been in possession for twelve years the suit was barred. But that is not the law, as found in Article 144 of Schedule II of the Limitation Act, which prescribes that the period shall run from the date when the possession of the defendant becomes adverse to the plaintiff. It is clear that, until a defendant has possession, he cannot have adverse possession; and if the defendant in the present case was out of possession at the time of the sale, and subsequently obtained possession, it can only have been adverse from the time when he entered on the property--Ram Prosad Janna v. Lakhi Narain I.L.R. Cal. 197 and Sheo Prasad v. Udai Singh I.L.R. All. 718.

4. We must, therefore, reverse the decisions of the Courts below, and remand the case for retrial with reference to the foregoing remarks. Costs to abide the result.


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