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Bolai Chand Ghosal and ors. Vs. SamiruddIn Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal646
AppellantBolai Chand Ghosal and ors.
RespondentSamiruddIn Mandal and anr.
Excerpt:
limitation - ejectment, right to sue in--order made in proceeding where a dispute, exists concerning the possession of land--limitation act (xv of 1877) schedule ii, articles 47 and 144--criminal procedure code (act x of 1872), section 530--criminal procedure code (act x of 1882), section 145. - .....by gobind and some of his tenants against the second defendant and some of his tenants. at that time gobind's position was this:he had partly by a letter, and partly by an oral agreement, obtained a promise for a lease. that agreement he had sued on, and obtained in 1879 a decree from the court affirming his right to the lease upon his deposit of the residue of the money agreed to be paid as salami, the residue being rs. 50. the zemindar did not carry out the decree of the court, and seems to have been persistent in his refusal to carry it out. ultimately the court was obliged to make an order for the execution of the pottah, by reason, as we may assume, of the zemindar's persistent neglect to execute it. that was done in december 1881. it was provided that the lease should take.....
Judgment:

Pigot, J.

1. We have only to deal here with the interest of a three-fourths share of the property, that is to say, with the dismissal by the District Judge of the claim in respect of the share conferred by the pottah of the 19th December 1881; and as to that, because the plaintiff, who represented the remaining one-fourth of that interest, did not appeal to the District Judge against the decision of the Munsif, which rejected his claim as representing Gobind. In the view we take of the case, that party would, had he appealed, come within the scope of the principle to be applied.

2. It has been held by the District Judge that the bar created by Article 47 of the Limitation Act operates as a bar to the entire claim. Proceedings under Section 530 of the old Criminal Procedure Code were, in December 1880, instituted by Gobind and some of his tenants against the second defendant and some of his tenants. At that time Gobind's position was this:He had partly by a letter, and partly by an oral agreement, obtained a promise for a lease. That agreement he had sued on, and obtained in 1879 a decree from the Court affirming his right to the lease upon his deposit of the residue of the money agreed to be paid as salami, the residue being Rs. 50. The zemindar did not carry out the decree of the Court, and seems to have been persistent in his refusal to carry it out. Ultimately the Court was obliged to make an order for the execution of the pottah, by reason, as we may assume, of the zemindar's persistent neglect to execute it. That was done in December 1881. It was provided that the lease should take effect as from the 5th May 1876, the date at which, according to the agreement, the lease was to have been executed. In the proceedings Hinder Section 530, instituted when Gobind was clothed with these rights under the decree, which was not perfected until 1881, Gobind entirely failed to establish possession under the terms of that section. Quite properly, therefore, the Magistrate held that he had not possession; and the District Judge in the present case has held that inasmuch as the suit was not brought within three years from the date of the order in the 530 case, to establish the claim under the lease, the right to which Gobind then had, and the grant of which to him was made in 1881, all those persons were barred by reason of their omission to bring a suit to recover the property comprised in the said order, within three years after the date of that order. We disagree with the learned District Judge in that view. We think that that provision cannot apply, particularly having regard to the terms of Section 145, as it now stands, which contemplates an action in ejectment: Article 47 must refer to such a right of suit, and a judgment under Section 530 of the Criminal Procedure Code, existing at the time of the passing of the order. We do not think a right to sue in ejectment existed at the time: no such suit could be brought until the lease was granted, and as we have said, it is obvious that, so far from that right being possessed by Gobind at the time of the passing of the order under Section 530, the pottah which it was his legal right to get was not obtained, not until some time after, as the zemindar had persistently refused to grant it. We think it would not be within what we regard as the reasonable scope of Article 47 of the Limitation Act to apply it to this case. And as regards three-fourths of the property, we hold that no bar, such as can be created by the Limitation Act, does exist.

3. As to the remaining one-fourth, we cannot express any direct opinion, as the parties interested are unfortunately not before us.

4. As to the second point, that the statute of limitation, which is of a much wider and more searching scope, bars the case, we are unable to agree with the District Judge. He considers that limitation began to run from the date at which, for some reason, the District Judge thought that the right should be considered dead.

5. Whether he did this for the purpose of enabling plaintiff to get mesne profits or not we need not speculate upon; but limitation did not run under Article 144 until the pottah was actually executed.

6. We therefore set aside the decree of the District Judge and send the case back to him for decision on the other points arising in the case.

7. The costs of this appeal will abide the result.


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