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Luchmeshur Singh Vs. Sheo Sohye Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal577
AppellantLuchmeshur Singh
RespondentSheo Sohye Roy and ors.
Cases ReferredMahomed Alt Khan v. Khaja Abdul Gunny I.L.R.
Excerpt:
limitation act (xv of 1877), sections 45, 140 and 142 - suit for possession--dispossession during unexpired ticca by plaintiff's predecessor--limitation--expiry of lease. - .....laid down as a general rule that the burden is on the plaintiff to make out that his claim is not barred by limitation. therefore, if, upon another ground, we could not uphold the decision of the lower appellate court, it would have been necessary to remand this case to that court for a finding upon the question of limitation, . but it seems to us that, accepting the finding of the first court, that the dispossession took place in 1860 which finding was not questioned by the defendant, the plaintiff's claim is not barred by limitation. it is an admitted circumstance in this case, that in that year the mouzah in which the land is alleged to lie was not in the khas possession of the plaintiff's predecessor in title, but was in the possession of a ticcadar. it is also not disputed that if.....
Judgment:

Mitter, J.

1. The only point upon which we called upon the respondent to answer this appeal is the question of limitation. The Court of First Instance found that the dispossession of the plaintiff's predecessor in title took place in the year 1860. There was no appeal against that finding by the defendant. There was an appeal by the plaintiff-respondent before us, and the District Judge throwing the onus of proof upon the defendant, came to the conclusion that it was not made out by him that the dispossession took place earlier than 1870. The District Judge in throwing the onus of proof on the defendant followed certain decisions cited by him, but these decisions have been since considered in a Full Bench case, Mahomed Alt Khan v. Khaja Abdul Gunny I.L.R. 9 Cal. 744, and they have been explained as referring to certain peculiar circumstances which distinguished them from ordinary cases where limitation is pleaded. In the Full Bench decision it was laid down as a general rule that the burden is on the plaintiff to make out that his claim is not barred by limitation. Therefore, if, upon another ground, we could not uphold the decision of the lower Appellate Court, it would have been necessary to remand this case to that Court for a finding upon the question of limitation, . but it seems to us that, accepting the finding of the first Court, that the dispossession took place in 1860 which finding was not questioned by the defendant, the plaintiff's claim is not barred by limitation. It is an admitted circumstance in this case, that in that year the mouzah in which the land is alleged to lie was not in the khas possession of the plaintiff's predecessor in title, but was in the possession of a ticcadar. It is also not disputed that if the 12 years be counted from the date when the term of the ticca came to an end, the plaintiff would not be barred by limitation. On the other hand, if the period prescribed by the law of limitation is to be computed from the date of dispossession as found by the first Court, the claim of the plaintiff would be barred by limitation. Upon this point, viz., whether the one or the other period of time is the proper point from which limitation is to run, there is a conflict of authority. They have all been placed before us, and we are of opinion that the preponderance of authority is in favour of the proposition that the claim is not barred by limitation. As we agree in that view we dismiss this appeal with costs.


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