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Ramdhone Bhuttacharjee Vs. Khajah Ashanoollah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal326
AppellantRamdhone Bhuttacharjee
RespondentKhajah Ashanoollah
Excerpt:
limitation - beng. act viii of 1869, section 27--suit for possession with mesne profits--defendants--title. - .....circumstances which prevent the application of it here. in the first place, it is not simply a suit to recover the occupancy of land from which the plaintiff has been dispossessed by the person entitled to recover the rent. there is a certain complication in the facts alleged, because the plaintiff claims a howla right of which the principal defendant altogether denies the existence. he sues khajah ashanoollah, who is not the sole zemindar, but one of the persons entitled to the rent. he sues also ram coomar sen, the previous talookdar of this estate, and he also sues the several persons who are now paying rent to khajah ashanoollah. the case is not therefore merely whether the plaintiff has been unduly ejected from a subsisting tenure, but whether the courts will find and establish.....
Judgment:

L.S. Jackson, J.

1. It appears to us that this is not a suit to which the provisions of Section 27 of Beng. Act VIII of 1869 could be applied for the purpose of barring the suit as not brought within one year. Whatever other difficulties that section may present in regard to suits differing from the present one, we think there are many circumstances which prevent the application of it here. In the first place, it is not simply a suit to recover the occupancy of land from which the plaintiff has been dispossessed by the person entitled to recover the rent. There is a certain complication in the facts alleged, because the plaintiff claims a howla right of which the principal defendant altogether denies the existence. He sues Khajah Ashanoollah, who is not the sole zemindar, but one of the persons entitled to the rent. He sues also Ram Coomar Sen, the previous talookdar of this estate, and he also sues the several persons who are now paying rent to Khajah Ashanoollah. The case is not therefore merely whether the plaintiff has been unduly ejected from a subsisting tenure, but whether the Courts will find and establish by their adjudication a howla right which the plaintiff asserts and the defendant denies. The plaintiff also seeks to recover wasilat. Taking all these circumstances together, it appears to us that this is not a suit of the simple nature referred to in Section 27, and that clearly limitation would not apply. But beyond that it may be observed that this question is now raised for the first time in special appeal. The only kind of limitation set up by the present special appellant in his answer to the suit was that of twelve years. He denied that the plaintiff had been in possession of the land in any shape within twelve years previous to the suit. That allegation has been disallowed by both the Courts. I may observe that the defendant's written statement in this suit has been verified by his mookhtear. No doubt, there are certain kinds of cases in which an extensive landholder may be allowed to make the verification by his local agent, but there are many allegations in this case which the defendant ought to have personally admitted byt singing the verification himself, and I do not think that the Court should, in the exercise of its discretion, allow written statements such as the present one to be verified by the mookhtear. For all these reasons, we think that the plea now set up must fail, and as there is no other point relied upon, this appeal must be dismissed with costs.


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