1. This is an appeal against the judgment and decree of the first Court of the Subordinate Judge at Midnapore dated 21st March 1938, in a suit to recover khas possession of half share of four C. S. plots, 1421, 1421/2040, 1422 and 1423 of Mahalla Bibigunj in Midnapur town or in the alternative for partition of the half share and for certain other reliefs. Plaintiffs' case briefly stated is as follows: The disputed four plots and three adjoining O. S. Plots, viz., 1418 to 1420 form one block of land measuring six cottas in area. Half share of this block of land belonged to Nemani Chand Maity, Nabadwip Maity and Mahendra Maity and the other half share belonged to one Mohesh Chandra Mallick, father of defendants 15 to 18. Nemai Chand, Nabadwip and Mohendra sold their half share of this block of land to Hem Gopal Dutt, the maternal uncle of the plaintiffs on 3rd October 1904. Hem Gopal died in 1313 B.S. (1906) without any issue. His widow Charubala Dasi inherited his properties. In the year 1927, plaintiffs as the reversioners brought a suit (Title Suit No. 140 of 1927) in the Court of the Subordinate Judge at Midnapur against the widow for appointment of a receiver and for certain other reliefs. This suit was decreed by consent. By this decree plaintiffs got all the properties left by Hem Gopal Dutt. During the pendency of this suit defendant 1 trespassed upon plaintiffs' eight annas share of the disputed lands and one Jnanendra Nath Nandy, the shebait of defendant 3, trespassed upon the five annas share of the disputed land belonging to defendants 15 to 18. After the disposal of Title Suit No. 140 of 1927 plaintiffs brought a suit (Title Suit No. 374 of 1931) in the first Court of Munsiff at Midnapore against defendant 1 and the then shebaits of defendant 3. In that suit plaintiffs alleged that defendant 1 and defendant 3 were their tenants and prayed for possession of their half share through them. The defendants in that suit denied the relationship of landlord and tenant with the plaintiffs and set up an independent title. In that suit plaintiffs' title to half share of the disputed plots was declared, but they failed to prove in that suit that defendants in that suit were their tenants. Defendant 2 is the wife of defendant l. Defendants 4 to 12 are the present shebaits of the deity, defendant 3. After the disposal of Title Suit No. 374 of 1931 plaintiffs asked defendants 1 to 14 to give up their eight annas share of the disputed plots but they refused to do so. Plaintiffs are, therefore, entitled to recover khas possession of the eight annas share of the disputed plots jointly with defendants 15 to 18 or in the alternative khas possession of half share of the disputed lands after partition.
2. Defendants 15 to 18 in their written statement support the plaintiffs' case. The defence of defendants 1 to 12 is this : The plaintiffs or defendants 15 to 18 have no title to the disputed land. C. S. Dags 1425 to 1433, C. S. Plots 1421, 1421/2040, 1422, 1423 and the eastern portion of C. S. Dag No. 1424 are lands at Tahabazar known as School Bazar. These lands belong to one Earn Govinda Nandy. After his death his son Earn Narayan Nandy got eleven annas share of these lands and his brother Earn Chandra Nandy the remaining five annas share. One Chandra Shekher Nandy purchased the 11 annas share of these lands. Chandra Shekher mortgaged this 11 annas share to one Rakbal Dutt. In execution of a decree obtained by Rakhal on the basis of this mortgage, the 11 annas share of this property was sold on 21st August 1906, and was purchased by defendant l. Thereafter, by a Nirupan Potro (deed of settlement) defendant 1 transferred this property to his wife, defendant 2. Earn Chandra Nandy by his will dedicated his five annas of this property to the deity defendant 3. Defendants 4 to 12 are the present shebaits of defendant 3. Plaintiff's story of possession and dispossession is absolutely false. Defendants 1 to 12 are in possession of the disputed property in their own right. They and their predecessor in interest are in possession of the disputed lands for 40 years without any dispute to the knowledge of and adversely to the plaintiffs and their predecessors in interest.
3. The Subordinate Judge has found that the plaintiffs and defendants 15 to 18 have no title to the disputed lands. He has also found that the suit is barred by limitation. He has accordingly dismissed the suit. Hence this appeal by the plaintiffs. The first point for determination in this appeal is whether the plaintiffs have succeeded in proving their alleged title to the disputed land. It is not disputed in this appeal that the decision in Title suit No. 374 of 1931 of the first Court of Munsiff at Midnapore does not operate as res judicata in this suit. There is no dispute between the parties in this appeal that the half share of C. S. Plots Nos. 1418 to 1420 belonged to Nemai Chand Moiti, Nabadwip Moiti and Mohendra Moiti and that the other half share belonged to the father of defendants 15 to 18. There is also no dispute in this appeal that the half-share of these three plots was purchased by Hem Gopal from these Moities in the year 1904 and that the plaintiffs have inherited this half-share as reversionary heirs of Hem Gopal Dutt. It is also an admitted fact in this case that C. S. Plots Nos. 1425 to 1433 belong to defendants 2 and 3 and that defendants 4 to 12 are the present shebaits of defendant 3. The disputed plots are to the east of C. S. Plots Nos. 1418 to 1420. The eastern portion of a lane (C. S. Dag 1424) is to the south of the disputed plots and to the north of C. S. Plots 1425 to 1433. Plaintiffs' case is that the disputed plots also belonged to Nemai Chand Moiti, Nabadwip Moiti and Mohendra Moiti and father of defendants 15 to 18 and that Hem Gopal purchased 11 annas share of the disputed plots from the Nandi along with C. S. plots Nos. 1418 to 1420 and that defendants 15 to 18 have inherited the remaining 5 annas share from their father.
4. The contesting defendants deny this. Their case is that the disputed plots are parts of Tahabazar which originally belonged to Ram Gobinda Nandy. The dispute between the parties is, therefore, a boundary dispute. Exhibit 1 is the kobala by which Nemai Chand Moity, Nabadwip Moity and Mohendra Moity sold to Hem Gopal Dutta on 3rd October 1904, about half-share of two adjacent plots of land measuring six cottas. One of these two plots is mal (rent paying) and the other is rent free. The mal plot is on the south of the rent-free plot. The area of each of these plots is three cottas. The eastern boundary of the mal plot is public road and the southern boundary is Tahabazar (C. S. Dags 1423 to 1433) of Earn Chandra Nandy and others (the predecessors in interest of defendants 2 to 12) on the other side of the lane (C. S. Dag 1424). This kobala shows that the vendors mortgaged the land sold to the purchaser on 28th of Pous 1306 = 10th January 1899, by the mortgage bond, Ex. 2 A. The description and boundaries given in this mortgage bond are the same as in the kobala Ex. 1. Exhibit 2 A shows that the mortgagors mortgaged this property by Ex. 2 A to pay off the debt due on a mortgage bond (Ex. 2) executed by them in favour of Ram Charan De father of defendant 1 on 23rd Pous 1305 = 5th January 1898. The description of the mortgaged property in Ex. 2 is the same as in Ex. 2 A and Ex. 1. The eastern boundary is also the same. The southern boundary, however in this document is Ram Chand Nandy's Tahabazar and lane.
5. The boundaries of the lands in Ex. 1, Ex. 2 A and ex. 2 have not been relayed in the locality. The C. S. record and the O. S. map of the locality were prepared in the year 1917-18. If the position of the public road and the lane mentioned in Ex. 2, Ex. 2 A and Ex. 1 be assumed to be the same as shown in the C. S. map the boundaries of the lands sold by Ex. 1 would include the disputed plots and the boundaries of Ex. 2 would exclude the lane (C. S. Dag NO. 1424). Exhibit 2 mentions the lane and Thabazar as the southern boundary of the mortgaged mal plot. The lane not being the entire southern boundary a portion of Tahabazar must be on the north of the lane. Defendant 1 purchased 11 annas share of Tahabazar in execution of a decree in the year 1906. Ex. M is the sale certificate. The northern boundary of Tahabazar given in this document is public road and the land of Ram Hari Maity and others. This boundary supports the southern boundary of the mal plot in Ex. 2. Much reliance was placed by the appellants upon the western boundary mentioned in Ex. M. But in view of the configuration of the plot covered by Ex. M, the northern boundary is really the north-western boundary. Exhibit 1 mentions certain title deeds, namely, (1) a registered partition deed dated 12th Chaitra 1284 B.S., (2) a kobala dated 29th Chaitra 1284 B.S., (3) a kobala dated 25th Aswin, 1293 B.S., and (4) a kobala dated 21st Kartick 1297, B.S. This document further shows that Ex. 2, the kobala of 29th Chaitra 1284 and the kobala of 21st Kartick 1297, were made over as title deeds by the vendors to the purchaser.
6. Excepting Ex. 2 the other title deeds have not been produced by the plaintiffs in the present suit. In view of these facts we place no reliance on the southern boundary of the mal plot given in Ex. 2A and Ex. 1. From Ex. 2 and Ex. M, it is clear that some portion of Tahabazar is to the immediate south of the land sold by Ex. 1. In the year 1923 defendants 15 to 18 brought a suit (Title suit No. 172 of 1923) against Charubala Dasi, the widow of Hem Chandra, for partition of 9 annas share of only C. S. Plots 1418, 1419 and 1420 (partly khas and partly tenanted), on the allegation that their father Mohesh Chandra Mallick purchased the said share by registered kobalas in the years 1304, 1306 and 1307 and that the remaining 7 annas share belonged to the defendant in that suit. These kobalas have not been produced by defendants 15 to 18. The eastern boundary of the block of land which was the subject-matter of partition in that suit was given as public road, the brick built house of Sk. Sakaitulla, Manick Chandra Nandy and Satya Charan De (defendant l). The suit was compromised. By this compromise plaintiffs and the defendants agreed to take equal share of the property under partition and the three plots which were the subject-matter of the partition suit were then divided equally between the parties. There is no satisfactory explanation why the disputed plots were excluded from partition in that suit. The area of G. S. plots Nos. 1418, 1419 and 1420 is 6 cottas. These three plots comprise mal and niskar lands. The area and the eastern boundary of the lands which were partitioned in that suit excludes the disputed lands.
7. Plaintiffs' case is that they got the disputed lands as reversioners of Hem Gopal's estate by the compromise decree in Title Suit No. 140 of 1927. They have produced certified copies of the judgment of the trial Court and the decree of the Court of appeal (Exs. 10 and 11). They have not produced the certified copy of the decree of the trial Court. The certified copy of the decree of the appeal Court does not contain any schedule of the immovable properties left by Hem Gopal Dutt. The dispute between the parties being boundary dispute, the possession of the disputed land is an important element to be taken into consideration in determining the dispute. Plaintiff's case is that the 3 cottas of mal plot mentioned in Ex. 6 were held by the Moities, their predecessors in interest, at an annual jama of Re. 1-3-5 gds. under the zamindar of Narajole and that the other 3 cotta plot is niskar (rent free). In the plaint Ex. N1 which was filed by the plaintiffs in the first Court of the Munsif at Midnapur on 14th May 1931 plaintiffs stated that the Moities settled all the disputed plots excepting the lane (c. Section 1424) in korfa tenancy with the predecessor in interest of defendants 2 to 12 at an annual rent of Re. 1. This, however, they failed to substantiate in that suit. Their case in the present suit is that the defendants entered into possession of the disputed lands as trespassers in the year 1927 after dispossessing them from the disputed plots in the same year. Their case in the suit of 1931 supports defendants' contention that they are in possession of the disputed lands from before the purchase by Hem Gopal in the year 1906. They have failed to prove that the defendants 1 to 12 were tenants in respect of the disputed land under them or their predecessors in interest at any time. There is no reliable evidence on the side of the plaintiffs to show that before 1927 the plaintiffs or their predecessors-in-interest possessed the disputed plot at any time.
8. The case of the defendants in the suit of 1931 as well as in this suit is that they or their predecessors-in-interest were never the korfa tenants of the plaintiffs or their predecessors-in-interest and that they are in possession of the disputed plot for more than forty years as part of Tahabazar which they hold directly under the zamindar of Naraiole. The record of rights, Exs. S and S1 finally published in the year 1917 record defendants 1 and 3 as being in possession of all the disputed plots excepting the lane as part of Tahabazar held by them as tenants directly under the zamindar of Narajole. Exhibit C, a registered kabuliyat of the year 1898, Ex. El, the certified copy of a decree for ejectment dated 12th July 1890, the collection papers, Ex. A8 to Ex. A16 and the oral evidence of D.W. 1 to D. W. 3, clearly show that defendants 2 to 12 and their predecessors in interest have been in possession of the disputed land at least from the year 1898. In view of these facts and circumstances we are of opinion that the plaintiffs have failed to establish their title to the disputed lands. The next point for determination is whether the suit is barred by limitation. Article 141, Limitation Act
applies only to oases where it is proved that the lust full owner was in possession at the time of his death; if he himself was dispossessed and time began to run against him the operation of the law of limitation would not be arrested by the fact that on his death he was succeeded by his widow, daughter or mother: Mohindra Nath Biswas v. Mt. Shamsunnessa Khatun ('15) 2 AIR 1915 Cal 629.
9. We have already found that Hem Chandra, the last full owner was not in possession of the disputed land and that the defendants had been in possession of the disputed land at least from the year 1898. Plaintiffs' case is that Charubala Dasi was dispossessed from the disputed lands by the defendants in the year 1927 and that before 1927 Charubala and her predecessors in interest were in possession of the disputed lands. The suit is, therefore, governed by Article 142, Limitation Act. As the plaintiffs have failed to prove their possession within twelve years from the date of the alleged dispossession the suit is barred by limitation. The appeal accordingly fails and it is dismissed with costs.