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Obhoy Nund Roy and ors. Vs. Shoteenath Moorkerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1880)ILR5Cal331
AppellantObhoy Nund Roy and ors.
RespondentShoteenath Moorkerjee and ors.
Excerpt:
limitation - symbolical possession--obstruction or resistance to possession--act xv of 1877, schedule ii, article 167. - .....munsif nor his officers could have any authority, after the lapse of six or eight years from the date of purchase, to interfere summarily and put the plaintiffs into possession of what they had purchased. their remedy would be by a civil suit, if not barred.5. as to the possession before 1871, if any, it was what is called symbolical possession,--that is to say, possession by the sticking up of a bamboo, or the like. that is not the mode of giving possession of a property like the present--a family dwelling-house. the purchasers were entitled to ask for, and in order to save limitation they ought to have obtained, actual possession. now, actual possession, if we suppose it could have been given in 1871, was not of a legal or regular kind, because it was by the intervention of the.....
Judgment:

Jackson, J.

1. We think it clear that the Subordinate Judge in this case is wrong, and that the suit was barred.

2. The plaintiffs sued to obtain a partition by declaration of their purchased right, and for use and occupation at pleasure of a moiety of certain premises.

3. It seems that, on the 31st January 1863 they had purchased a half-share in a certain house, which originally belonged to defendants Nos. 1 and 2. They took no steps at the time to obtain possession; but, in 1869, the Nazir was directed to put them into possession, and he gave them what is called symbolical possession; but the plaintiffs not being satisfied with that, applied further to the Court, and in August 1871 they succeeded, with the assistance of the Nazir, in obtaining ingress into one of the rooms in this house. The Subordinate Judge does not find that they retained such possession for more than a minute, and it is admitted that the defendants did at once, or almost at once, resume possession, and have since continued in possession.

4. Now, the plaintiffs, on purchasing this property, if they were obstructed in obtaining possession, were at liberty to apply to the Court to put them into possession. Both the Act of 1871 and the Act of 1877 limit them to thirty days for the making of that application, and Section 269 of the repealed Code of Civil Procedure similarly directed that such complaint might be made within one month from the date of such resistance or obstruction. But clearly, neither the Munsif nor his officers could have any authority, after the lapse of six or eight years from the date of purchase, to interfere summarily and put the plaintiffs into possession of what they had purchased. Their remedy would be by a civil suit, if not barred.

5. As to the possession before 1871, if any, it was what is called symbolical possession,--that is to say, possession by the sticking up of a bamboo, or the like. That is not the mode of giving possession of a property like the present--a family dwelling-house. The purchasers were entitled to ask for, and in order to save limitation they ought to have obtained, actual possession. Now, actual possession, if we suppose it could have been given in 1871, was not of a legal or regular kind, because it was by the intervention of the Nazir, who had no more power in that case than any private individual. It did not subsist for any space of time so as to give it any real effect. Therefore, the plaintiffs derived no fruit from their purchase since it was made in 1863, and as this suit was brought on the 18th November 1876, nearly fourteen years after the date of purchase, it was clearly barred by limitation. The judgment of the Munsif, therefore, was right, and must be restored, and that of the Subordinate Judge set aside with costs.


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