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Jagamba Goswamini Vs. Ram Chandra Goswami - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal314
AppellantJagamba Goswamini
RespondentRam Chandra Goswami
Cases Referred and Fatimatulnissa Begum v. Sundar Das
Excerpt:
limitation - debutter property, transfer of--adverse possession--limitation act (xv of 1877), sections 2, 10, 28--implied trust--act ix of 1871, sections 10, 29--act xiv of 1859--regulation iii of 1793--revival of right to sue barred under old law. - .....and that his predecessor had no right to make a gift of it as brahmottar land in favour of the defendants' predecessor.2. the lower courts have found the land to be debutter. they have accordingly given the plaintiff a decree.3. the defendants now appeal and on their behalf it is contended (i) that the suit is barred by limitation, and (ii) that the lower courts were wrong in admitting in evidence a document described in the lower appellate court's judgment as the list of 1178. we need say no more with regard to this second plea than that for the reasons given at length by the officiating judicial commissioner we consider that the document was properly admitted in evidence.4. the appellants' first plea however, in our opinion must prevail. the argument of the learned pleader for the.....
Judgment:

Rampini and Pratt, JJ.

1. This is an appeal against a decision of the Officiating Judicial Commissioner of Chota Nagpur. The suit out of which the appeal arises is one brought to establish the right of the plaintiff, as shebait, to recover possession of certain land alienated, by one of his predecessors in favour of the predecessor of the defendants so long ago as the 17th Bysack 1227, or 28th April 1820, that is upwards of 80 years ago. The plaintiff contends that the land is debutter and that his predecessor had no right to make a gift of it as brahmottar land in favour of the defendants' predecessor.

2. The lower Courts have found the land to be debutter. They have accordingly given the plaintiff a decree.

3. The defendants now appeal and on their behalf it is contended (i) that the suit is barred by limitation, and (ii) that the lower Courts were wrong in admitting in evidence a document described in the lower Appellate Court's judgment as the list of 1178. We need say no more with regard to this second plea than that for the reasons given at length by the Officiating Judicial Commissioner we consider that the document was properly admitted in evidence.

4. The appellants' first plea however, in our opinion must prevail. The argument of the learned pleader for the appellant on this point is a twofold one. He says, firstly, the provisions of Section 10 of the Limitation Act (XV of 1877) on which the lower Appellate Court relies, do not apply, because the words 'person in whom property has become vested in trust for any specific purpose' mean a person in whose favour according to English law an express trust, as distinguished from an implied trust, has been created. Some support for the argument is to be found in a judgment of Chief Justice Garth in Kherodemomy Dosee v. Doorgamony Dossee (1878) AI.L.R. 4 Calc. 455, but we on the whole agree with the opinion of the Madras High Court in Sethu v. Subramanya (1887) I.L.R. 11 Mad. 274, that a person in the position of the defendant is 'a person in whom property has become vested in trust for any; specific purpose,' within the meaning of the section. The pleader for the appellant, in the second place, contends that as the gift of the property in favour of the predecessor of the defendants was made in 1820, and the grantee or his successors have been in possession of the lands as brahmottar ever since, the suit was barred by limitation long before Act IX of 1871 (the provisions of Section 10 of which are practically similar to those of Section 10 of the present Act) came into operation, and hence the right to sue once barred cannot be revived either by Act IX of 1871 or Act XY of 1877.

5. We are of opinion that this argument must prevail. It is true that there is no section in Act IX of 1871, or any previous Act, similar to Section 3 of Act XV of 1877, which, however, would not seem to apply to Section 10, owing to the words 'Notwithstanding anything hereinbefore contained,' which occur in the beginning of the latter section. But neither in the two statutes previously in force, which deal with the subject of limitation, viz., Regulation III of 1793, and Act XIV of 1859, is there any provision similar to Section 10 of Acts IX of 1877 and XV of 1877. It has been pointed out to us that in neither of the former two enactments is there any provision similar to Sections 29 and 28 of the two latter Acts. In answer to this it is sufficient to point out that it has been ruled by the Privy Council in the cases of Gunga Gobind Mundul v. Collector of 24-Pergunnahs (1867) 11 Moo. I.A. 345, 361, Luchmee Buksh Roy v. Runjeet Ram Panday (1873) 13 B.L.R. (P.C.) 177 : 20 W.R. 375, and Fatimatulnissa Begum v. Sundar Das (1900) I.L.R. 27 Calc. 1004 : L.R. 27 I.A. 103, that even before the passing of Acts IX of 1871 and XV of 1877, a right not sued for within the period of limitation prescribed for the suit is extinguished and cannot be revived by the passing of any subsequent Apt (See also Mitra on Limitation and Prescription, 3rd Edition, p. 13). Hence it is clear that as the defendants' predecessor or predecessors was or were in adverse possession of the land sued for in this suit since 1820 and have from that date been holding it as brahmottar land, the plaintiff, notwithstanding the provisions of Section 10 of the limitation Act of 1877, cannot now recover it.

6. We therefore decree this appeal with costs.


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