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Barkat Ali and anr. Vs. Das (Dost) Kazi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal117,53Ind.Cas.260
AppellantBarkat Ali and anr.
RespondentDas (Dost) Kazi and ors.
Cases ReferredBinad Lal Pakrashi v. Kalu Pramanik
Excerpt:
limitation act (ix of 1908), schedule, i, article 11-civil procedure code (act v of 1908), order xxi, rules 58, 61, 63 - executive of decree--claim dismissal of order whether affect person not parties to proceedings--landlord and tenant--occupancy tenant claiming by virtue of settlement from co-sharer landlord right of, to make settlement. - .....in the claim case and the provisions of article 11, schedule i to the limitation act, would bar a suit by defendants nos. 9 and 1o, i see no reason why the plaintiffs in the present suit should not be allowed to prove that at the time the settlement was made with them the plaintiffs had a good title. they were no parties to the claim case and the provisions of article 11 cannot apply to this suit. they have been able to show to the satisfaction of the lower appellate court, which is the final court of fact, that when the settlement was made these defendants had a good title to the interest they claimed. the effect of failing in the claim case and omitting to sue within the time of limitation may deprive these defendants of their former title, bat it can not take away the right.....
Judgment:

Newbould, J.

1. The plaintiffs brought this suit for declaration of their occupancy right in 8-annas share of a certain piece of land and for joint possession thereof with defend-ants Nos. 1 to 8.

2. It is found that the land in suit originally belonged to one Ram Gopal. Rani Gopal died leaving two sons Sarat Chandra and Ishan Chandra, Sarat Ghandra had two sons, Mohim defendant No. 9 and Sris defendant No. 10. Ishan had also two sons, Kailash defendant No. II and Nibaran defendant No 12. Ram Gopal left a Will and by that Will his property descended not to his sons but to his grandsons in equal shares. In May 1907 the plaintiffs obtained settlement of the 8 annas interest from the two grandsons of Rim Gopal defendant Nos. 9 and 10. About this time a money decree was obtained against the two sons, Sarat and Ishan In execution of that decree the tenure which had belong ed to Ram Gopal was attached as belonging to his sons, and his grandsons preferred a claim which was rejected. The whole tenure was sold on the 20th August 1908 and purchased by the defendant No. 11. No suit was brought to set aside the order in the claim case. Subsequent to the auction sale defendants Nos. 1 to 8 obtained a raiyati settlement from the defendants Nos. 11 and 12. The suit brought by the plaintiffs was dismissed in the Court of first instance, but has been decreed in the lower Appellate Court.

3. Three points have been argued in second appeal. The first is that the settlement by undivided 8-annas landlords cannot give the plaintiff any title. In support of this contention reliance is placed on an unreported case, Second Appeal No. 3402 of 1910 [Kader Bakhsh v. Ram- Manikya Dis (1)] decided by a Bench of this Court on the 24th February 1913. That decision does not support the appellants' contention. In that case settlement was made by a person claiming the right to make settlement of a share in the land in which he had in fact no such right. The settlement was made in good faith and it was held that as the settlement was made by an undivided co sharer landlord, the principle of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 (F. B.); 10 Ind. Dec. (n. s.) 477. could not apply. It was not held in that case that a person who really had the right of a co sharer landlord could create no rights in a tenant with whom he made settlement proportionate to his interest.

4. The next point taken is that as no suit was brought by the defendants Nos. 9 and 10 to set aside the order rejecting their claim in the execution case, they had no subsisting title to the land at the time of this suit. But though this order in the claim case and the provisions of Article 11, Schedule I to the Limitation Act, would bar a suit by defendants Nos. 9 and 1O, I see no reason why the plaintiffs in the present suit should not be allowed to prove that at the time the settlement was made with them the plaintiffs had a good title. They were no parties to the claim case and the provisions of Article 11 cannot apply to this suit. They have been able to show to the satisfaction of the lower Appellate Court, which is the final Court of fact, that when the settlement was made these defendants had a good title to the interest they claimed. The effect of failing in the claim case and omitting to sue within the time of limitation may deprive these defendants of their former title, bat it can not take away the right previously created by them in favour of the plaintiffs.

5. The last point urged is that on the case made, the defendants Nos. 9 and 10 after the failure of their claim case effected a compromise with defendants Nos. 11 and 12 and were content to accept 4 annas share only in settlement of their dispute and that consequently the plaintiffs at the most can only claim 4-annas share. This contention fails on the same ground as I hold the second contention fails, that is to say, the interest of the plaintiffs was not affected by the subsequent conduct of their lessor.

6. These are the only three points taken in this appeal; and I accordingly dismiss it with costs.


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