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Bhobo Pershad Khan Chowdhuri (Minor) by His Mother Ram Sukhi Dabia and anr. Vs. Sharat Sundari Dabia - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal101
AppellantBhobo Pershad Khan Chowdhuri (Minor) by His Mother Ram Sukhi Dabia and anr.
RespondentSharat Sundari Dabia
Cases ReferredKrishna Gobind Dhur v. Hari Churn Dhur I.L.R.
Excerpt:
limitation act, 1877, article 144 - ijardar, dispossession of--adverse possession--zamindar, suit by. - .....and purchased by him, the defendant, in the year 1276. he therefore contended that the plaintiff's suit was barred by limitation, and that he was entitle to retain possession of the sixteen annas of the lands of these two mouzahs.3. the lower courts decreed the plaintiff's claim. they found that the 8 annas share of the two mouzahs appertains to the plaintiff's zamindari no. 6100, but they were of opinion that the dispossession of the plaintiff's ijardar took place in the year 1278, when the plaintiff's zamindari was in ijara to mr. brodie, and that the ijara terminated in the year 1285. they accordingly decreed the suit, holding that, as it was brought within twelve years of the termination of that ijara, at which period the plaintiff's cause of action accrued, it was not barred.4. it.....
Judgment:

Mitter, J.

1. The plaintiff seeks to recover possession of an 8-anna share of two mouzahs, alleging that the said share appertains to his zamindari No. 6100, and that the defendant, who is the owner of the other 8 annas, is in wrongful possession of the whole. He further alleges that his zamindari was let out in ijara; that the ijara lease terminated in the year 1285; and that on the termination of that lease he was dispossessed from the disputed land in the beginning of 1286.

2. The defendant denied the plaintiff's allegation that he was dispossessed in 1286, and alleged that these two mouzahs constituted the holding of one Goluck in the defendant's zamindari, and that in execution of a rent decree this tenure was sold and purchased by him, the defendant, in the year 1276. He therefore contended that the plaintiff's suit was barred by limitation, and that he was entitle to retain possession of the sixteen annas of the lands of these two mouzahs.

3. The lower Courts decreed the plaintiff's claim. They found that the 8 annas share of the two mouzahs appertains to the plaintiff's zamindari No. 6100, but they were of opinion that the dispossession of the plaintiff's ijardar took place in the year 1278, when the plaintiff's zamindari was in ijara to Mr. Brodie, and that the ijara terminated in the year 1285. They accordingly decreed the suit, holding that, as it was brought within twelve years of the termination of that ijara, at which period the plaintiff's cause of action accrued, it was not barred.

4. It is contended before us that this decision is erroneous in law; that the cause of action in this case accrued to the plaintiff when possession was taken by the defendant in the year 1278, and that as the present suit was not brought within twelve years of that date it was barred by limitation. It was contended, on the other hand, that the dispossession of the ijardar was not the dispossession of the zamindar.

5. Various rulings of this Court have been cited before us. It appears that there is a conflict of decisions in this Court on this point. The latest ruling Krishna Gobind Dhur v. Hari Churn Dhur I.L.R. 9 Cal. 367 is in favour of the view taken by the lower Courts. It follows an earlier ruling--Woomesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15. Having considered these and the other cases to which we were referred, we are of opinion that the view taken by the lower Courts on this point is correct. For the reasons given in Krishna Gobind Dhur v. Hari Churn Dhur I.L.R. 9 Cal. 367 we are of opinion that the present case is governed by Article 144 of the Limitation Act; and that as the adverse possession of the defendant against the plaintiff commenced only on the termination of the ijara lease, within twelve years of the suit, the suit is not barred.

6. Another point has been raised before us, that the plaintiff was not at any rate entitled to khas possession.

7. I was under the impression when the case was being argued that the defendant set up a tenancy under both zamindars: but even if it were so, the lower Courts would have been right in decreeing the suit, because it was not proved that the tenure was transferable. But Baboo Srinath Das, who appears for the appellant, informs us that the defendant alleged that the tenure was held under the defendant's zamindari only. In that view the question of transferability does not arise. The 8 annas share of the disputed land being found to be part and parcel of the zamindari, and the claim not being barred by limitation, there is no defence to the suit.

8. The lower Courts were therefore right in awarding a decree in favour of the plaintiff. 'We dismiss the appeal with costs.


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