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Smt. Sarju Bai Vs. Chairman, Municipal Board and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1937All188
AppellantSmt. Sarju Bai
RespondentChairman, Municipal Board and anr.
Excerpt:
- - the defence was firstly one of title claiming that the plot was nazul land, which has been held by both the lower courts to fail. the suit of the plaintiff therefore for possession is well within time as the period of limitation under article 141 is 12 years......the written statement did not admit anything more in this pleading than that the plaintiff's mother died and that the plaintiff was her daughter. consequently an issue was framed, no. 2, whether the plaintiff was entitled to sue, and on that issue the trial court set out the succession indicated, but ended up by saying:the plaintiff being the daughter and heir of her mother is therefore entitled to sue.4. at the same time towards the end of its judgment the trial court observed:adverse possession against a widow is not adverse possession against the next reversioner and therefore if the municipal board had held the land adversely to srimati radha bai it cannot be said that the defendants are in adverse possession against the present plaintiff because the plaintiff is only entitled.....
Judgment:

Bennet, J.

1. This is a second appeal by the plaintiff whose suit for possession of a certain plot No. 332/677, as being within her zamindari in mauza Civil Jhansi, was decreed by the Court of first instance but dismissed by the lower appellate Court. The defendants are the Municipal Board of Jhansi and the Secretary of State. The defence was firstly one of title claiming that the plot was nazul land, which has been held by both the lower Courts to fail. The second line of defence was title by adverse possession. An issue was framed on this point, issue No. 3, and decided in favour of the plaintiff by the trial Court and in favour of the defendant by the lower appellate Court. The plaintiff set up a pedigree which has been accepted by the Courts below, and is as follows:

Bijai Ram|Har Lal=Mt. Radha Bai|------------------------------| | Raghubir Sahai Srimati Sarju Bai(died 1800 (plaintiff)last male holder)=Kesar Bai (died shortly after him)

2. The estate which is a large zamindari estate of Bijai Earn was held after him by his son Har Lal and after Har Lal by his son Raghubir Sahai, who died about the year 1900. His widow, Mt. Kesar Bai, held the estate as a limited owner for a short time, and on her death the estate was held by Mt. Radha Bai, mother of the last male-holder, also as a limited owner, and Mt. Radha Bai died on 27th November 1932. After the death of Mt. Radha Bai a question arose as to whether the plaintiff or her grandmother should hold the estate and by a document drawn up on 6th March 1933 it was agreed that the plaintiff should hold the estate as a limited owner. Now the plaint in para. 3 stated:

Srimati Radha Bai died on the 27th November 1932. The plaintiff is her daughter and she had no heir other than the plaintiff for the question of inheritance has already been decided under a document dated the 6th and registered on the 9th March 1933.

3. There is no doubt that this description of the plaintiff as the heir of her mother is inaccurate and the plaintiff is really a reversioner of the last male holder Raghubir Sahai who succeeded her mother Mt. Radha Bai who had only a limited interest as a Hindu mother. The written statement did not admit anything more in this pleading than that the plaintiff's mother died and that the plaintiff was her daughter. Consequently an issue was framed, No. 2, whether the plaintiff was entitled to sue, and on that issue the trial Court set out the succession indicated, but ended up by saying:

The plaintiff being the daughter and heir of her mother is therefore entitled to sue.

4. At the same time towards the end of its judgment the trial Court observed:

Adverse possession against a widow is not adverse possession against the next reversioner and therefore if the Municipal Board had held the land adversely to Srimati Radha Bai it cannot be said that the defendants are in adverse possession against the present plaintiff because the plaintiff is only entitled to recover possession of the property after the death of the widow Srimati Kadha Bai.

5. It is clear therefore that the trial Court treated the plaintiff as the next reversioner to the estate of the last male-holder Raghubir Sahai who died in 1900, and did mot treat her as the heir of her mother, and the expression 'heir of her mother' is merely a slip in the judgment of the trial Court. Both, the person who drafted the plaint arid the trial Court, were no doubt careless in the language which they employed. The defend ants brought an appeal in which they set out various grounds in regard to limitation and adverse possession and also pleaded that the property was nazul property and that the evidence in favour of defendants should have been believed. Now the Court below, as already mentioned, did not accept the claim that the land was nazul property but held:

I would hold the plaintiff's title is proved, and the case therefore becomes a question of adverse possession and limitation.

6. The learned District Judge took the view that the plaintiff was bound by the title she set up in para. 3 of her plaint and the judgment states:

I hold therefore that the plaintiff-respondent must stand by her plea that she succeeded as the heir of Mt. Radha Bai and that for this reason she cannot seek the protection of Article 141 of the Limitation Act.

7. I do not consider that the plaintiff should be limited in this manner. Learned Counsel for the plaintiff, appellant has referred to the ruling of their Lordships of the Privy Council reported in Ghanendra Kumar Roy v. Praffulla Nath Thakur A.I.R. 1929 P.C. 200, in which their Lordships similarly held that a plaintiff should not be tied down to a particular position taken up in a plaint where in the trial Court the matter of the position of the plaintiff had been made sufficiently clear. I am of opinion that in the present case these observations would apply and that the position of the plaintiff as reversioner of the last male-holder was made sufficiently clear in the trial Court. In Bankey Lal v. Raghunath Sahai : AIR1928All561 , it has been laid down that a Hindu female succeeding as a reversioner to another Hindu female owner does come under Article 141 of the Limitation Act. In my opinion therefore the plaintiff can apply that provision of the law of Limitation and under this article the period of limitation which runs against the plaintiff is when the last female holder died, that is 27th November 1932, when Mt. Radha Bai died. The suit of the plaintiff therefore for possession is well within time as the period of limitation under Article 141 is 12 years. Now the learned District Judge has found that the possession of the Municipal Board arose in the year 1916 and that from 1916 to 1935 the land has been held by tenants of the Municipality to whom the land had been given after an auction by the Municipal Board. In regard to the larger portion of the land it was held that it had been let out to a tenant from 1914 to 1917. The earliest possession therefore by the Municipal Board of any portion of this small piece of land, area 55 acre, is in the year 1914. Mt. Radha Bai and before her Mt. Kesar Bai, were holding as limited owners from the year 1900 up to the year 1932. The possession therefore of the Municipal Board arose during this period of limited ownership. Therefore under the provisions of Article 141 the suit of the plaintiff is within time. For these reasons I allow this appeal and I restore the judgment of the trial Court with costs throughout. Permission is granted for a Letters Patent appeal as a point of law has been argued.


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