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Krishna Lall Dutt Vs. Radha Krishna Surkhel and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal402
AppellantKrishna Lall Dutt
RespondentRadha Krishna Surkhel and ors.
Cases Referred and Lalit Goomar Bose v. Ishan Chunder Chuckerbutty
Excerpt:
limitation act (xv of 1877), schedule ii, article 138 - possession, suit for--auction purchaser, suit by, for possession. - .....both parties had admitted that the case must be governed by it. and if it had been shown that the formal possession awarded to the plaintiff on the 2nd of july 1869 had been followed by any act of possession, such as the grant of permission to the defendants which is alleged in the plaint, we should hold that this took the case out of the scope of article 138. but we observe that the court has negatived the plaintiff's allegation in this respect; and has found that there was nothing but the formal publication of plaintiff's possession. it seems to us, therefore, that the formal possession obtained through the court having been infructuous, the plaintiff was entitled to bring a suit to obtain actual possession, but was bound to bring it within the period prescribed by article 138, viz.,.....
Judgment:

Tottenham, J.

1. At the hearing of this appeal we were disposed to think that the Courts below had committed an error in applying to the case Article 138 of the Limitation Act, although both parties had admitted that the case must be governed by it. And if it had been shown that the formal possession awarded to the plaintiff on the 2nd of July 1869 had been followed by any act of possession, such as the grant of permission to the defendants which is alleged in the plaint, we should hold that this took the case out of the scope of Article 138. But we observe that the Court has negatived the plaintiff's allegation in this respect; and has found that there was nothing but the formal publication of plaintiff's possession. It seems to us, therefore, that the formal possession obtained through the Court having been infructuous, the plaintiff was entitled to bring a suit to obtain actual possession, but was bound to bring it within the period prescribed by Article 138, viz., twelve years from the date of purchase.

2. The rulings cited, viz.; Kristo Gobindo Kur v. Gunga Pershad Surma 25 W.R. 372 and Lalit Goomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258 would require a purchaser to obtain possession through the Court before bringing such a suit as the present one, but would not, we think, preclude him from enforcing his right by suit when the formal possession given by the Court has failed to put him in absolute possession.

3. But we think the suit was out of time, and this appeal must be consequently dismissed with costs.


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