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Dharma Nand and anr. Vs. Khema and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.8
AppellantDharma Nand and anr.
RespondentKhema and ors.
Excerpt:
adverse possession - hereditary office--inference-commissioner, kamaon division, power of--second appeal. - this matter has been referred to us under rule 17 of the kamaon rules. the suit was a suit to establish the plaintiffs' right to a three-fourths share in what has been admitted to be a hereditary office within the meaning of article 124 of the second schedule of the limitation act of 1877. the defence was that the suit was barred by limitation. the court of first appeal found that the defendant had been receiving the entire profits of the office for upwards of 12 years prior to 1899. it also found that the defendant had been performing all the duties connected with the office. as an inference from these facts it found that the defendant had been in adverse possession. in our judgment this was an inference of fac which the court of first appeal was entitled (sic) draw. having stated so.....
Judgment:

This matter has been referred to us under Rule 17 of the Kamaon Rules. The suit was a suit to establish the plaintiffs' right to a three-fourths share in what has been admitted to be a hereditary office within the meaning of Article 124 of the second schedule of the Limitation Act of 1877. The defence was that the suit was barred by limitation. The Court of first appeal found that the defendant had been receiving the entire profits of the office for upwards of 12 years prior to 1899. It also found that the defendant had been performing all the duties connected with the office. As an inference from these facts it found that the defendant had been in adverse possession. In our judgment this was an inference of fac which the Court of first appeal was entitled (sic) draw. Having stated so much we proceed to answer the several questions referred to us.

1. In our opinion the suit is governed by Article 124 of the second schedule of the Limitation Act of 1877, and by no other article. This has not been disputed in the course of the arguments.

2. We have pointed out that the findings of the Court of adverse possession was a legitimate inference from the evidence. In our judgment it, therefore, follows that the suit was barred by limitation on the findings arrived at by the Court of first appeal.

3. Under the circumstances of the present case, and for the reasons we have already given, the Commissioner, as a Court of second appeal, was not competent to go behind the findings of the Court of first appeal.

4. On the findings of fact arrived at by the Court of first appeal the payments and receipts referred to in this question were of no effect whatever.

5. It is unnecessary to give any answer to the fifth question.

6. We are of opinion that the plaintiffs should pay the defendants' costs in all Courts.


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