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Panchu Kapali and Rajaram Kapali, Minors, by their Grandmother Next Friend and Guardian Bijoya Kapali Vs. Jajneswar Majhi and Rohini Dasya Widow of Abhoy Charan Majhi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal329,53Ind.Cas.959
AppellantPanchu Kapali and Rajaram Kapali, Minors, by their Grandmother Next Friend and Guardian Bijoya Kapal
RespondentJajneswar Majhi and Rohini Dasya Widow of Abhoy Charan Majhi
Excerpt:
bengal tenancy act (viii b. c. of 1885), schedule iii article 3 - licensee refusing to vacate on expiry of license effect of--possession, suit for--limitation. - .....not be applicable as the plaintiffs never having been in possession, there can be no; date: of dispossession from which the period- of limitation would commence to run. in my opinion there was? in law dispossession of the 'plaintiffs. after the execution of the lease the plaintiff was' put in actual possession of 7 cottas of the' property demised, which amounted to delivery; of possession of that properly. the defendants' possession under their former right ceased' and, therefore, the possession for three months after the lease was that of licensees of the plaintiffs, when the plaintiffs 'possessed part of?, the land themselves and the remainder was in the possession of their licensees, the plaintiffs were in actual or constructive possession of the whole of the 12 cottas. when their.....
Judgment:

Newbould, J.

1. This appeal arises out of a suit for declaration of the plaintiff's title to 5 cottas of land and for possession thereof. Both Courts, after deciding in the plaintiffs' favour on the facts at issue, have held that the suit must be dismissed as being barred by limitation under Article 3, Schedule III of the Bengal Tenancy Act.

2. The facts as found are as follows: The plaintiffs' father on the 7th Magh 1315 B. S. was granted a potta by (be defendants. At the time of granting this potta the defendants were in possession of 5 cottas of the land and obtained permission of the plaintiffs' father to remain in possession during three months to enable them to remove their huts on the land. But after this period had elapsed, the defendants did not remove their huts and remained in possession adversely to the plaintiffs' father and afterwards to the plaintiffs.

3. It is first contended that the special limitation of the Limitation Act did cot apply, because there is no evidence on the record to prove that the plaintiffs were raiyats, This point was not taken in the grounds of appeal to this Court. In both the lower Courts it appears that there was never any dispute that the plaintiffs' status was that of raiyats and I, therefore, refused to allow this point to be urged before me.

4. The next point taken was that the suit was not of the nature contemplated by Article 3, Schedule III; that it could not be a suit for recovery of possession, since the plaintiffs had never, been in possession and that the Article could not be applicable as the plaintiffs never having been in possession, there can be no; date: of dispossession from which the period- of limitation would commence to run. In my opinion there was? in law dispossession of the 'plaintiffs. After the execution of the lease the plaintiff was' put in actual possession of 7 cottas of the' property demised, which amounted to delivery; of possession of that properly. The defendants' possession under their former right ceased' and, therefore, the possession for three months after the lease was that of licensees of the plaintiffs, When the plaintiffs 'possessed part of?, the land themselves and the remainder was in the possession of their licensees, the plaintiffs were in actual or constructive possession of the whole of the 12 cottas. When their licensees, at the end of the period of three months for which their license was granted, refused to quit part of the land, they did in effect dispossess the plaintiffs. I would, therefore, hold that there was such dispossession as to make Article 3 Schedule III of the Bengal Tenancy Act applicable.

5. It is lastly contended that the dispossession was not by the defendants in their capacity as landlords. The suit being one in which the tenants are the plaintiffs and the landlords are the defendants and the allegation being one of actual dispossession by the landlords, there can be no question of the applicability of the special period of limitation provided by the Bengal Tenancy Act. The question of limitation is the only point that arises in this appeal and. as I hold the decision of the lower Court on this point was right, the appeal must be dismissed with costs.


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