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Nilmony Singh Vs. Jagabandhu Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal536
AppellantNilmony Singh
RespondentJagabandhu Roy and ors.
Cases ReferredKannan v. Niluhandan I.L.R.
Excerpt:
valuation of suit - appeal--bengal, n.w.p. and assam civil courts act (xii of 1887), section 21, sub-section (l)--'value of the original suit'--limitation act (xv of 1877), schedule ii, articles 134 and 144--alienation of debutter property by a previous sebait--sebait, suit by succeeding--adverse possession. - .....sebaits, as was observed in the case just referred to, formed a continuing representation of the idol's property. if we were to hold otherwise, it would lead to a most anomalous result; for then it would follow that, although after any alienation of the idol's property, ten successive sebaits may not take any steps to recover the idol's property, the eleventh sebait, it may be after a hundred years or more, would still be in time to institute a suit for recovery of possession. such a result the legislature could not have contemplated. in our opinion under article 144 the suit is barred by limitation. this view is in accordance with the decision of the madras high court in the case of kannan v. niluhandan i.l.r. 7 mad. 337.10. in this view it is not necessary to pronounce any opinion.....
Judgment:

Banerjee and Gordon, JJ.

1. This appeal arises out of a suit brought by the plaintiff appellant to recover khas possession of certain immoveable property with mesne profits, and to obtain a declaration that a pottah and a kabala set up by the defendants are illegal and collusive, upon the allegation that the property constitutes the debutter of the idol Sri Sri Kalachand Jeo Thakur; that the defendant No. 6 Srimati Chota Bahira was the former sebatt of the idol; that she has been removed from the office of sebait, and the plaintiff Nilmony Singh Deo has been appointed in her place by a decree of Court, dated the 27th December 1888; and that during the time that the property was under the management of the defendant No. 6, the pottah and the kabala sought to be set aside were executed in favour of the defendants Nos. 1 to 4, or their predecessor in title by the defendant No. 6 in collusion with the defendant No. 5, her son.

2. The defence was that the suit was barred by limitation; that the property belonged to the defendant No. 5, and did not form any part of the debutter property of the idol Sri Sri Kalachand Jeo Thakur; and that the defendants Nos. 1 to 4 are bond fide purchasers of the same for value and without notice of any debutter title. The defendants also took another objection, namely, that the suit had been over-valued with the object of changing the venue of appeal, and that upon a proper valuation of the property the value of the suit would be below Rs. 5,000.

3. Upon the question of valuation the lower Court has found in favour of the defendants. Upon the merits of the case it has found that the property is debutter property, and that the pottah and kabala set up by the defendants are genuine documents, but without coming to any decision as to their validity, the lower Court has dismissed the plaintiffs' suit upon the ground of limitation.

4. The plaintiff has preferred this appeal valuing it at the same amount at which the suit was valued, that is, Rs. 7,500; and his contention is that the Court below is wrong in holding that the suit was barred by limitation, and that it ought to have decreed the suit.

5. The defendants have preferred a petition of objection in which they dispute the correctness of the lower Court's finding upon the question of debutter; and at the hearing of the appeal a preliminary objection was taken by the learned vakil for the respondents that the appeal under Section 21 of the Civil Courts Act lay to the District Judge and not to this Court, the value of the original suit having been found in this case to be below Rs. 5,000, and that the appeal was liable to be dismissed upon that ground, more especially as the appeal had been filed in this Court more than thirty days after the date of the decree appealed against, and therefore after the period allowed for appealing to the District Judge.

6. Having regard to the language of Section 21 and to the nature of the finding arrived at by the Court below upon the question of value, we are of opinion that this preliminary objection must fail. Section 21 of the Civil Courts Act, Sub-section (1) enacts that 'save as aforesaid an appeal from a decree or order of a Subordinate Judge shall lie-(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed Rs. 5,000, and (b) to the High Court in any other case.'

7. What then was the value of the original suit in this case? The value of the original suit as instituted was clearly above Rs. 5,000; and, if that is to be taken as the criterion, the appeal would lie to this Court. It was contended that 'the value of the original suit' must be taken to mean, not the value which the plaintiff chooses to give to his suit, but the value which is found upon investigation by the Court below to be the value of the suit. We are not prepared to accept this contention as correct in the broad form in which it has been presented to us. There may be cases, and the present is one of them, in which the finding of the Court below upon the subject of value is itself questioned in the appeal; and there it cannot be said that the appellant, notwithstanding that he questions the correctness of the finding of the Court below as to valuation, is still bound to accept that finding for the purpose of determining what Court has jurisdiction in respect of the appeal. Questioning, as the plaintiff appellant did, the correctness of the finding as to value, and contending that his valuation was a correct one, he could not but have preferred the appeal to this Court as he has done. It was argued that if a suit is over-valued with the object of changing the venue of appeal, and it is found upon investigation that that was so, it would be wrong to allow the appellant to insist upon having his appeal heard by the Court to which it would lie upon the basis of his valuation, and that 'the value of the original suit' contemplated in Section 21 must be taken to be the bond fide value of the suit. That may be so, but it is not necessary to consider the matter here, because, although the lower Court has found that the proper value of the suit is below Rs. 5,000, it does not find that the over-valuation was the result of any design. And, having regard to the evidence, the proper value comes so near Rs. 5,000 that it is difficult to say that the overvaluation was the result of any design to change the venue of appeal. The view we take is in accordance with the cases of Lakshman Bhatkar v. Babaji Bhatkar I.L.R. 8 Bom. 31 and Mahabir Singh v. Behari Lal I.L.R. 13 All. 320.

8. Coming now to the merits of the appeal, we observe that the appeal and the cross-objections open the whole case; and the first point for determination in the appeal is whether the suit is barred by limitation. The Court below is of opinion that it is barred under Article 144 of the second schedule of the Limitation Act. It has been contended before us that it is also barred under Article 134. On the other hand, it was contended that the suit could not come under Article 134, nor under Article 144, and that it was governed either by Section 10 of the Act or by Article 120.

9. The question is not altogether free from difficulty. It has been very fully argued before us by the learned senior Government Pleader Babu Hem Chandra Banerjee and Babu Ram Charan Mitra for the appellant, and by Babu Kali Kishan Sen for the respondents; and after giving our best consideration to the arguments, the conclusion we arrive at is that the suit is barred, and that it comes either under Article 134 or under Article 144. Article 134 relates to a suit to recover possession of immoveable property convoyed in trust and afterwards purchased from the trustee for a valuable consideration. The period of limitation prescribed is twelve years, and it runs from the date of the purchase. And the mokurri lease and the conveyance are both of dates long anterior to twelve years preceding the date of the institution of this suit. The question might arise as to whether the word 'purchase' used in Article 134 would also include a mokurri lease. Ordinarily, the word 'purchase' would not include the taking of a lease, but as Article 134 is evidently connected with Section 10 of the Act, it is not unlikely that the word 'purchase' in Article 134 was intended to correspond to the words 'assigns for valuable consideration' in Section 10. That the lease and the conveyance were both for valuable consideration is not disputed. What was alleged on behalf of the plaintiff was that the consideration was inadequate, and it was contended that valuable consideration under Article 134 must mean really valuable consideration, and not merely nominally valuable consideration. That may or may not be so; but in the present case, although the consideration might have been inadequate, it cannot be said to have been inadequate to such a degree as would justify our holding that it was merely nominal. It was contended that Article 134 did not apply to this case for the farther reason that the article was limited to purchasers from a trustee in his character as trustee, and in the present case the alienations were not made by the defendant No. 6 in that character. We are not prepared to give effect to this contention so far as it seeks to limit the application of Article 134. There is nothing in the article to limit its application in that way. It is doubtful, however, whether the documents can be regarded as having been executed by the former trustee or sebait. As regards the kabala, that was executed, not by the defendant No. 6, but by the defendant No. 5; and it is no part of the plaintiffs' case that the defendant No. 5 was trustee or sebait. And even as regards the mokurri, the executant was not defendant No. 6, but the defendant No. 5 through his guardian the defendant No. 6 and her co-widow. But granting that Article 134 does not apply, the case, we think, must come under Article 144. It is a suit for possession of immoveable property; and if Article 134 does not apply to it there is no other provision of the schedule that applies to it, except Article 144. It was contended that the suit would not be barred under Article 144, as limitation runs from the time when the possession of the defendant becomes adverse to the plaintiff, and the present plaintiff not claiming through or from any preceding sebait within the meaning of the explanation of the word plaintiff in Section 3, the possession of the defendants can only be said to have become adverse to the present plaintiff from the date of his appointment as sebait, that is, 1888, which is within twelve years of the date of the institution of the suit. We are of opinion that this contention is not sound. The property, granting it for the purposes of the present question to be debutter, was the property of the idol Sri Sri Kalachand Jeo Thakur. The idol is a judicial person capable of holding property as has been authoritatively settled by the decision of the Privy Council in the case of Shibessuree Dabia v. Mothoora Nath Acharjo 13 Moo. I.A. 270 : 13 W.R. P.C. 18, and the possession of the defendants who profess to derive title, not from the idol, but ignoring its> rights must be taken to have become adverse to the idol from the dates of the two alienations which are both more than twelve years before the date of the present suit. It is true that the idol, to use the language of their Lordships of the Judicial Committee in the case of Prosunno Kumari Debya v. Golab Chund Baboo 14 B.L.R. 450 : 23 W.R. 253 : L.R. 2 I.A. 145, can hold property only in an ideal sense, and that its acts relating to any property owned by it must be done by or through its manager or sebait : but that does not show that each succeeding manager gets a fresh start as far as the question of limitation is concerned, upon the ground of his not deriving title from any previous manager. The succeeding sebaits, as was observed in the case just referred to, formed a continuing representation of the idol's property. If we were to hold otherwise, it would lead to a most anomalous result; for then it would follow that, although after any alienation of the idol's property, ten successive sebaits may not take any steps to recover the idol's property, the eleventh sebait, it may be after a hundred years or more, would still be in time to institute a suit for recovery of possession. Such a result the Legislature could not have contemplated. In our opinion under Article 144 the suit is barred by limitation. This view is in accordance with the decision of the Madras High Court in the case of Kannan v. Niluhandan I.L.R. 7 Mad. 337.

10. In this view it is not necessary to pronounce any opinion upon the merits of the case. But as the case was argued upon the merits as well, we think it right to make a few observations upon the merits of the case. It was strongly pressed upon us by the learned vakil for the respondents that the finding of the Court below as to the genuineness of the arpannama or deed of dedication, and as to the debutter character of the property is wholly unsustainable on the evidence. We have heard the evidence read. Though we must say that the first witness examined by the plaintiff to prove the arpannama is in our opinion an unreliable witness, so far as he deposes to the execution of that document, still, having regard to the age of the document, and to the fact of its having been filed in previous suits so far back as the year 1881, and having regard also to the fact that one of the defendant's own witnesses, Bara Lall Lachman Singh Deo, proves that Pancham Kumari had an idol of the name of Kalachand Jeo Thakur, and that she performed the sheba of Kalachand with the income of her properties in Nagpur, we are not prepared to dissent from the conclusion arrived at by the Court below.

11. As the suit fails upon the ground of limitation, it is not necessary to say anything more upon this point, or upon the other points raised in the appeal.

12. The appeal is accordingly dismissed with costs.


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