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Deo NaraIn Chowdhury and ors. Vs. C.R.H. Webb and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal86
AppellantDeo NaraIn Chowdhury and ors.
RespondentC.R.H. Webb and anr.
Excerpt:
limitation - bengal tenancy act (viii of 1885), article 8, schedule iii and section 184--limitation act (xv of 1877), schedule ii, article 47--attachment under section 146 of the criminal procedure code--appellate court, power of, to take cognizance of limitation for the first time--suit to recover possession of land by occupancy--raiyat. - .....apparently did not do so nor does it appear that in his petition of appeal to this court he makes any complaint that by reason of the omission of the munsif to raise any issue as to limitation, he did not adduce such evidence as he might have adduced if the munsif had raised the issue.4. upon these grounds we think that the contention raised as to limitation fails.5. there is one other matter involved in this suit, and that is with regard to plot no. 4. as to this plot the plaintiff has been found to have no cause of action against the present defendants, and it is therefore obvious that he is entitled to no relief as to that plot in this case.6. for all these grounds the appeal is dismissed with costs.
Judgment:

Ghose, J.

1. Two points have been raised before us in this appeal on behalf of the plaintiff, appellant, one being that so far as the plots Nos. 1 and 2 covering an area of 5 cottahs of land are concerned, the plaintiff is not barred by the limitation of two years prescribed by Article 3,schedule. Ill, of the Bengal Tenancy Act, because there was an order by the Magistrate, under the provisions of Section 146 of the Code of Criminal Procedure, attaching the lands in question, and the limitation prescribed by Article 47, Schedule III of the Indian Limitation Act for setting aside such an order is three years from the date when the order is made; and the other point raised is, that the defendant not having raised the plea of limitation; and the Munsif not having raised an issue as to limitation, the Subordinate Judge in appeal ought not to have dismissed the case upon the ground of limitation, without, at any rate, allowing the plaintiff an opportunity of adducing evidence upon the matter.

2. As to the first point raised before us, it seems to us that the ouster of the plaintiff, as found by the Subordinate Judge, and that finding is based mainly upon the evidence coming from the side of the plaintiff himself, having taken place on the 9th of February 1895, antecedent to the date on which the Magistrate made his order under Section 146 (which was on the 31st May, 1895), the limitation as prescribed by Article 3, Schedule III of the Bengal Tenancy Act, began to run against the plaintiff from the date of the actual ouster; and it would not be reasonable to hold that because subsequent to this ouster some dispute arose between the parties, and the interference of the Magistrate was invoked, and because that officer attached the land, being unable to find which party was in possession, the limitation which had already began to run against the plaintiff ceased to run on, and that the plaintiff would have a fresh start of limitation from the date when the Magistrate made his order under Section 146 of the Code of Criminal Procedure. Moreover, as pointed out by the learned Vakil for the respondent, it is not altogether free from doubt whether Article 47, Schedule III of the Indian Limitation Act, which relates to a ' person bound by an order respecting the possession of property made under the Code of Criminal Procedure,' is applicable to the case of an order made under Section 146, which does not maintain the possession of any party. We accordingly overrule the point raised before us.

3. As regards the other question raised, all that we need do is to refer to Section 4 of the Indian Limitation Act, and Section 184 of the Bengal Tenancy Act, which empowered the Subordinate Judge to take 'cognizance of the question of limitation, though it might not have been raised by the defendant in the Court of first instance, if upon the proceedings in the case it appeared to him to be clear that the suit of the plaintiff was barred by limitation. He has come to a definite conclusion upon this matter. He has held that the allegation of the plaintiff as to dispossession, and to his previous possesssion within two years before the institution of the suit, is not true; but rather the evidence on the other side tends to show that the defendants were in possession for more than two years. All that the plaintiff in view of these facts could do was to ask the Subordinate Judge to allow him an opportunity of adducing other evidence upon the matter of possession if he thought such other evidence was available, and forthcoming. He apparently did not do so nor does it appear that in his petition of appeal to this Court he makes any complaint that by reason of the omission of the Munsif to raise any issue as to limitation, he did not adduce such evidence as he might have adduced if the Munsif had raised the issue.

4. Upon these grounds we think that the contention raised as to limitation fails.

5. There is one other matter involved in this suit, and that is with regard to plot No. 4. As to this plot the plaintiff has been found to have no cause of action against the present defendants, and it is therefore obvious that he is entitled to no relief as to that plot in this case.

6. For all these grounds the appeal is dismissed with costs.


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