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Nagendra Kishore Roy Choudhury and ors. Vs. Brojendra Kishore Roy Choudhury - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal842
AppellantNagendra Kishore Roy Choudhury and ors.
RespondentBrojendra Kishore Roy Choudhury
Cases ReferredJhumak Kamti v. Debu Lal Singh
Excerpt:
- .....on the contrary the suit is based on the allegation that the plaintiff has been the owner of the land in possession all along. thus in para. 2 of the plaint we find a statement that the plaintiff is the owner in possession of the land by right of shebaitship. in para. 4 we find that the post office is situated on the land with the permission of the plaintiff's predecessor. we also find there the allegation that the land is the debuttur land appertaining to the miras ijara of raj rajeswari mahadebi within zemindary no. 79 and the plaintiff is the sole owner in possession of the same in zemindary and shebaiti rights. then there is a statement that the land having been recorded in the settlement record as appertaining to touzis nos. 78 and 79,there have arisen great obstacles in the.....
Judgment:

Pearson, J.

1. This is an appeal by the defendants in a suit in which the plaintiff sued for declaration of his title and confirmation of his possession of a certain plot of land which is occupied by the Post Office at Netrakona. The plaintiff is the owner of Touzi No. 79 and the defendant is the owner of Touzi No. 78. The plaintiff's case is that the land in question belongs to Touzi No. 79. He says that he has been in possession for a large number of years and that the Post Office is in occupation of the land with permission of his predecessor. It appears further that in the Record of Rights this property has been recorded as belonging to Touzis Nos. 78 and 79, jointly. The Record of Rights was finally published on 9th December 1915, and this suit was filed on 9th December 1927, that is to say, on the last day before the expiry of 12 years. The defence pleaded was that the entry in the Record of Rights was correct, that there was no cause of action, and if there was a cause of action, it was barred by limitation. The first Court decreed the plaintiff's suit, declaring the plaintiff's exclusive title to the disputed land. The lower appellate Court came to the same conclusion and dismissed the appeal.

2. Before us the main contention of the defendant was that in the circumstances of this case the suit was barred by limitation and that the proper article applicable is Article 120, Schedule I, Lim. Act, which provides for limitation of six years, and not Article 142 or 144, which provides for 12 years' limitation. It is to be noted that the case as made in the plaint in this suit is not that there has been any disturbance of possession by the defendant: on the contrary the suit is based on the allegation that the plaintiff has been the owner of the land in possession all along. Thus in para. 2 of the plaint we find a statement that the plaintiff is the owner in possession of the land by right of shebaitship. In para. 4 we find that the Post Office is situated on the land with the permission of the plaintiff's predecessor. We also find there the allegation that the land is the debuttur land appertaining to the miras ijara of Raj Rajeswari Mahadebi within Zemindary No. 79 and the plaintiff is the sole owner in possession of the same in Zemindary and shebaiti rights. Then there is a statement that the land having been recorded in the settlement record as appertaining to Touzis Nos. 78 and 79,

there have arisen great obstacles in the matter of exercise of right and possession in the future.

3. Then follow the prayers and finally a statement that the cause of action arose on 9th December 1915, the date of the final publication of the settlement record. The prayers in the plaint are that a decree may be passed for confirmation of the plaintiff's possession on declaration that it is specific and exclusive land appertaining to Zemindary No. 79 owned and possessed by the plaintiff; and secondly, that it should be held that the land does not appertain to Zemindary No. 78 and that the defendants have no title to the same. Now, looking at the plaint as it stands, it is difficult to resist the conclusion that what the plaintiff was aiming at was laying the foundation for something that he feared might (happen in the future, having regard to the entry in the settlement record in 1915, but not alleging any act or interference by the defendant which had any bearing upon the possession of the plaintiff. In fact, as appears on the face of the plaint, he treats the settlement record as giving him the cause of action; though that position has not been attempted to be supported before us. If that is the true view to be taken of the plaint, it must be held that the plaintiff has no cause of action. In that ease the suit should perhaps be rather decided upon that ground than on the ground that there might be a cause of action, but that that cause of action is barred by limitation. So far as the limitation question is concerned, the learned advocate appearing for the respondent in the present case found a certain amount of difficulty, and quite naturally so, in saying that Article 142 or Article 144, Schedule I, Lim. Act, would apply to a case of this nature.

4. The difficulty of such a contention is obvious from a mere inspection of the Articles themselves. Article 142 is an article applicable to the cage of a plaintiff while in possession being dispossessed; which is not the case here. Similarly, Article 144 covers a suit for possession and limitation runs from the time the possession of the defendant became adverse to the plaintiff which is not the case here. And although two cases in this Court were relied upon on this point of limitation, we are not satisfied that in either case they really have the effect which is attributed to them. It may be conceded that a prayer for confirmation of possession hag been held not infrequently in these Courts to be a prayer for consequential relief; but that in itself does not take the argument any further. The ease of Dina Nath Das v. Rama Nath Das [1916] 34 I.C. 702 was referred to. That apparently was a case in which the relief claimed was, in addition to the declaration, a prayer for confirmation of possession and also for injunction. The head-note in that case is to this effect: Article 120, Schedule I, Lim. Act, is applicable to suits for declaratory reliefs, but not for declaratory reliefs with prayer for confirmation of possession and for injunction. At any rate, it is not an authority for the proposition that Article 142 or Article 144, would be applicable to such cases so as to introduce 12 years' limitation. More over, the judgment in that case upon this earlier point is really in the nature of an obiter, having regard to the fact that the learned Judge has said that even if Article 120 does apply, then the suit has been instituted within six years after the cause of action arose.

5. The other case which was referred to was the case of Jhumak Kamti v. Debu Lal Singh [1912] 16 I.C. 898 which was tentatively put forward as an authority for the proposition that a prayer for confirmation of possession was equivalent to a prayer for recovery of possession. That case, however goes no further than this, that where the plaintiff brings a suit on the footing that he is in possession and asks for confirmation of possession, if, in the course of the case, it appears that he is not in possession, but has been ousted from possession, then he may nevertheless be entitled to recover possession in that suit, although that is not the basis of his plaint. It is really not, in my opinion, necessary to discuss the question of limitation in the present case at any length. Mr. Chuckerbutty in arguing the case for the respondent made the most of the statement in the plaint that: 'there have arisen great obstacles in the matter of exercise of right and possession in future,' and he has referred us to a passage in the written statement to show that in fact the fear of subsequent disputes on the point is not unwarranted. But, in my opinion, the suit must fail because it is not based on any allegation or proof of interference or threat of interference by the defendant with the plaintiff's possession which he claims, except in so far as such interference in the future may be inferred as likely from the fact that in the Record of Rights the land has been recorded as belonging to two Touzis jointly. From that point of view I think that the suit ought to fail on the ground that there is no cause of action disclosed; and in that view, the appeal must be allowed, the decrees of the Courts below set aside and the suit dismissed with costs in all the Courts.

Mallik, J.

6. I agree.


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