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Gopaul Chunder Chuckerbutty Vs. Nilmoney Mitter and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1884)ILR10Cal374
AppellantGopaul Chunder Chuckerbutty
RespondentNilmoney Mitter and ors.
Cases ReferredRao Karan Singh v. Bakar Ali Khan L.R.
onus probandi - ejectment, suit for. - .....of suit. period of limi- time from which period begins rtation. to run.--------------------------------------------------------------------------------------------by a purchaser of land at a salein execution of a decree, for posses-sion of the purchased land, when the twelve years.... the date of the sale.]judgment-debtor was in possessionat the date of the sale.----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------+ [article 143:--------------------------------------------------------------------------------------------for possession of immoveableproperty, when the.....

Richard Garth, C.J.

1. I entirely agree with the learned Judge in the Court below that the plaintiff has made out no case; and the only reason, why I think it necessary to say a few words, is to explain my view of the argument, which has been addressed to us by Mr. Phillips, upon the plea of limitation. I think it very desirable that there should be no misunderstanding upon that subject.

2. The suit is brought to recover possession of a house and premises in Calcutta. The plaintiff claims the property, having purchased it, as he contends, from the Official Assignee, as belonging to a person named Mittunjoy Chuckerbutty (deceased), who is said to have been the absolute owner. The plaintiff's case is that the defendants Nos. 1 to 7, who are now in possession, were tenants on sufferance of Mittunjoy; and consequently that he, claiming through Mittunjoy, is entitled to eject them.

3. These defendants say, that they do not hold under Mittunjoy at all, that they are the tenants of the defendant Sreenarain Chuckerbutty, who is a brother of Mittunjoy, and all the defendants contend that Mittunjoy had never any title to, or possession of, the property.

4. This being the nature of the case, the plaintiff, in order to prove a title and possession in Mittunjoy, has called a witness named Tariney Churn Ban-nerjee, who professes to have been Mittunjoy's servant for a great many years. He says that Mittunjoy and his brothers had no ancestral property; but that he (the witness) and Mittunjoy used to come to Calcutta, and when there that they used to collect the rent of certain houses, and among them, of the house in question. But his evidence in this respect is of the vaguest character; he cannot say when it was that he received the rents, he certainly never received them from the defendants Nos. 1 to 7, and the utmost that his evidence amounts to is, that he received some rent for his house at some time or other, but when, he cannot say.

5. Under these circumstances, Mr. Phillips has contended that the onus is upon the defendants to show that they have been in possession for upwards of twelve years.

6. It seems to me that there is no ground for that contention. The suit, as I take it, is brought to recover possession of property as upon a dispossession. The plaintiff claims under Mittunjoy; his case is, that Mittunjoy was the owner in possession, that he has bought Mittunjoy's right and title; and that consequently he is entitled to treat the defendants 1 to 7, who were Mittunjoy's tenants, as trespassers.

7. Of course, if the plaintiff could have shown that these people (the defendants 1 to 7) were really Mittunjoy's tenants, he would have had the same rights against them that Mittunjoy had. But he has not attempted to prove, and certainly he has not succeeded in proving, that they were Mittunjoy's tenants. They are, therefore, holding adversely to the plaintiff, and the plaintiff is seeking to eject them upon the ground that they are in wrongful possession of his (the plaintiff's) property.

8. That being so, I consider that the plaintiff is bound to show that he or some or one of the persons under whom he claims, have been in possession of the property within twelve years before suit.

9. Mr. Phillips contends that this is not so, because the plaintiff has alleged in his plaint that the defendants Nos. 1 to 7 were the tenants of Mittunjoy. But if a mere allegation of that kind could relieve a plaintiff from the burthen of proving that he or those under whom he claims had been in possession within twelve years, that device might always be resorted to for the purpose of evading the law of limitation.

10. Then, again, Mr. Phillips, in support of his argument, has referred us to the case of Rao Karan Singh v. Bakar Ali Khan L.R. 9 I.A. 99 decided by the Privy Council the effect of which he contends, is to overrule the law laid down by the Full Bench of this Court in Mahomed Ali Khan v. Khaja Abdul Gunny I.L.R. 9 Cal. 744 : S.C. 12 C.L.R. 257.

10. In this it seems to me he is in error. That decision of the Privy Council was duly considered by this Court in the Full Bench case, but we did not notice it in our judgment, because we thought it did not apply.

11. That suit in point of fact was not for possession at all. It was brought by the plaintiff, a mortgagee, to recover the principal and interest due upon two mortgage bonds; and to enforce that claim, by a sale of the mortgaged property. The plaintiff, so far as appears, had never been in possession, nor did he ask for possession of that property. If he had, Article 138* of the Limitation Act would have applied.

12. The defendant's answer was, that the mortgagee (the plaintiff) could not enforce his right as against him, because he had been in possession of the property adversely to the plaintiff, and those under whom he claimed for upwards of twelve years before suit.

13. Under these circumstances, it was contended before the Privy Council that the plaintiff was bound to prove that he had been in possession within twelve years before suit, and this (as it would seem from the report) upon some general principle of law.

14. But their Lordships held that the suit was not brought (under Article 143+ of the Act of 1871) to recover possession as upon a dispossession, and they, therefore, considered that the plaintiff was not bound to prove a possession within twelve years before suit; but that it lay on the defendant to prove an adverse possession for that period in order to establish his defence. I have said thus much in order to explain why in my opinion the Privy Council decision is not applicable here, and why that decision does not conflict in any way with the Full Bench judgment of this Court. But in point of fact there is no evidence in the case which would justify any Court in finding in the plaintiff's favour.

15. The appeal must be dismissed with costs on scale 2.

Cunningham, J.

16. I concur in thinking that the ruling of the Judicial Committee in Rao Karan Singh v. Bakar Ali Khan L.R. 9 I.A. 99 cannot be regarded as modifying the law which has been repeatedly laid down in this Court on the subject of limitation in suits for possession of immoveable property.

17. The plaintiff in that case sued for the amount secured on two mortgage bonds, and for sale of the mortgaged property. The defendant pleaded twelve years' adverse possession, and all that appears to have been decided was that the defendant was not, for the reasons set forth in the judgment, entitled to add to the period during which he had himself been in adverse possession, the period during which the Collector had been in possession on behalf of Government. I agree in dismissing the appeal with costs.

-----------------------------------Foot Note---------------------------------------


* [Article 138:


Description of suit. Period of limi- Time from which period begins

rtation. to run.


By a purchaser of land at a sale

in execution of a decree, for posses-

sion of the purchased land, when the Twelve years.... The date of the sale.]

judgment-debtor was in possession

at the date of the sale.


+ [Article 143:


For possession of immoveable

property, when the plaintiff,

while in possession of the pro Twelve years.... The date of the dispossession or

perty, has been dispossessed or has


discontinued the possession.


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