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NobIn Chunder Roy and ors. Vs. Mohimah Chunder Bhuttacharjee - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal49
AppellantNobIn Chunder Roy and ors.
RespondentMohimah Chunder Bhuttacharjee
Cases ReferredKishori Mohun Roy Chowdhry v. Chunder Nath Pal I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, articles 136 and 138 - suit for possession of a tenure by a purchaser from the purchaser from a third person who bought at an auction, but never obtained possession--civil procedure code (act xiv of 1882), section 316. - .....the plaintiff relies on article 136 which provides for suits by a purchaser at a private sale for possession of immoveable property sold when the vendor was out of possession at the date of the sale. that is the case here. the plaintiff is a purchaser by private sale from a vendor who was not in possession at the time when the plaintiff bought. the period of twelve years in that case is to run from the time when the vendor is first entitled to possession. the time when the vendor is first entitled to possession under the provisions of section 316 of the code of civil procedure is not the date of the sale but the date when the sale is confirmed, and consequently as this plaintiff is not the auction-purchaser but is a purchaser from him, we think that article 136 applies, and not.....
Judgment:

W. Comer Petheram, C.J. and Beverley, J.

1. In this case we think that the judgment of the Subordinate Judge is quite eight.

2. The suit is a suit brought by the purchaser from the purchaser from a third person who bought an estate at an auction. As a matter of fact the original purchaser never got into possession of the property, although it is found here that the judgment-debtor was in possession at the time of the sale. The present suit is brought more than twelve years from the date of the actual sale but less than twelve years from the date when the sale was confirmed; and the question is whether, under these circumstances, his right is barred by limitation. It is quite clear that if the suit were brought by the auction-purchaser the right would be barred by Article 138, which provides for twelve years limitation from the date of the sale; but that Article is limited, in so many words, to the purchaser himself, and consequently does not apply, necessarily or at all, to persons other than the purchaser, including the person who claims to have bought from him, and so it is necessary to see whether the law with reference to other persons is the same as the law with reference to Purchasers.

3. The plaintiff relies on Article 136 which provides for suits by a purchaser at a private sale for possession of immoveable property sold when the vendor was out of possession at the date of the sale. That is the case here. The plaintiff is a purchaser by private sale from a vendor who was not in possession at the time when the plaintiff bought. The period of twelve years in that case is to run from the time when the vendor is first entitled to possession. The time when the vendor is first entitled to possession under the provisions of Section 316 of the Code of Civil Procedure is not the date of the sale but the date when the sale is confirmed, and consequently as this plaintiff is not the auction-purchaser but is a purchaser from him, we think that Article 136 applies, and not Article 138, and the point to be looked at is the date when the sale was confirmed and when the vendor of the plaintiff first became entitled to possession.

4. The pleader for the appellant has relied upon the case of Kishori Mohun Roy Chowdhry v. Chunder Nath Pal I.L.R. 14 Cal. 644. But that case was altogether different from this one on this point, and indeed when the whole of the judgment is read it appears that the view which was taken by the Judges in that case is the same as that which we take in this one.

5. The other points which are taken by the appellant cannot really be seriously argued, and the result is that this appeal must be dismissed with costs.


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