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Janaki Nath Saha and ors. Vs. Baikuntha Nath Ghattak and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal176,70Ind.Cas.602
AppellantJanaki Nath Saha and ors.
RespondentBaikuntha Nath Ghattak and ors.
Cases ReferredHaran Chandra Barai v. Hari Charan Barai
Excerpt:
limitation act (ix of 1908), schedule i, articles 138, 142, 144. - execution sale--suit for possession by purchaser against stranger--limitation applicable--articles 142, 144, application of--adverse, possession--trespasser, whether can add possession of previous trespasser--bengal tenancy act (viii of 1885), schedule iii, article 3, applicability of--dispossession by co-tenant. - .....courts have, therefore, concurred in rejecting the allegations of the plaintiff that he obtained actual possession, that he took settlement of the land from the landlord and that he had afterwards been in possession through burgadars until he was dispossessed by the defendants in magh 1318.3. the only defendants who contested the suit were the defendants nos. 7, 8 and g who are the appellants before us in this second appeal. one of the defences which they set up was that the suit was barred by limitation general and special. both courts conclude, though their reasoning is somewhat different, that the defence of limitation is not tenable and there are, therefore, concurrent decrees in the plaintiff's favour.4. the learned vakil for the appellant has contended that the present suit is.....
Judgment:

Thomas Richardson, J.

1. The plaintiff in this second appeal seeks to recover possession of certain land which had been mortgaged to him by the defendants Nos. 1 to 3 and which he had purchased at a sale held on the 17th July 1905, in execution of a decree on foot of the mortgage. The sale was confirmed on the 18th August. On the 15th December following possession, of the land was delivered to the plaintiff, and the present suit was brought on the 14th December 1917, that is, more than 12 years after the sale was confirmed, but just within 12 years of the date on which possession was delivered. The two Courts below have concurred in finding that possession was delivered symbolically, or, in other words, that the plaintiff was given not actual but formal possession of the land.

2. Both Courts have, therefore, concurred in rejecting the allegations of the plaintiff that he obtained actual possession, that he took settlement of the land from the landlord and that he had afterwards been in possession through burgadars until he was dispossessed by the defendants in Magh 1318.

3. The only defendants who contested the suit were the defendants Nos. 7, 8 and g who are the appellants before us in this second appeal. One of the defences which they set up was that the suit was barred by limitation general and special. Both Courts conclude, though their reasoning is somewhat different, that the defence of limitation is not tenable and there are, therefore, concurrent decrees in the plaintiff's favour.

4. The learned Vakil for the appellant has contended that the present suit is out of time under Article 138 of the limitation Act and that the decisions of the Courts below are, therefore, erroneous. The argument addressed to us makes it necessary to consider what, in the circumstances, is the appropriate rule of limitation.

5. The plaintiff, as we must assume, was never in actual possession, and of the time appellants-defendants the only defendant who claims under the mortgagor defendants Nos. 1 to 3 is the defendant No. 7. The defendants Nos. 8 and 9 set up an independent title derived from the landlord by settlement in the year 1914.

6. As to the defendants Nos. 8 and 9, they were no parties to the mortgage suit or to the proceedings in execution of the decree in that suit. If, therefore, the law is correctly laid down in the case of Khiroda Kanta Roy v. Krishna Das Laha 6 Ind. Cas. 467 : 12 C.L.J. 378 Article 138 of the limitation Act has no application to the present suit as against them. Inasmuch as the plaintiff was never in actual possession, Article 142 can have no application, and the only other Article on which these defendants can rely is the residuary Article No. 144. Under that Article the burden was on them to show that they had been in possession of the land adversely to the plaintiff for twelve years before suit brought. Obviously, they cannot establish any such case.

7. The learned Vakil for these appellants has contended that, because the plaintiff came into Court asserting possession obtained and subsequent dispossession, therefore, he is bound by his pleadings and must stand or fail under Article 142. In support of that proposition he referred to the decisions of the Privy Council in Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi 16 C. 473 : 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. (N.S.) 312 (P.C.) and Dharani Kanta Lahiri Chowdhuri v. Gabar Ali Khan 18 Ind. Cas. 17 : 17 C.W.N. 389 : 17 C.L.J. 277 : 13 M.L.T. 185 : (1913) M.W.N. 157 : 15 Bom. L.R. 445 : 25 M.L.J. 95 (P.C.). But the nature of the title set up and the claim made by the plaintiffs in those cases necessarily involved a previous actual possession and a subsequent dispossession by the defendants. Such cases are very different from cases like the present. Here if the plaintiff alleged that actual possession was delivered to him by the Court, the defendants successfully denied that allegation. Actual possession is not, in the circumstances, necessary to the plaintiff's success and we are at liberty to apply the rule of limitation appropriate to the fact found, namely, that he never had more than symbolical possession. I have dealt with the point on the lines on which it was argued but I will add that, in the view I should be disposed to take, even if Article 142 were applied, the plaintiff would still succeed. In each of the cases cited if it had first been shown that the true title was in the plaintiff and if it had then been proved o remitted that the possession of the defendant trespasser had commenced within the period of twelve years before suit, the plaintiff would, I think, have won. As I understand the principle applicable, one trespasser cannot add to his own possession the previous independent possession of another trespasser. When the possession passes from the first to the second trespasser, there is a constructive restoration even if a momentary restoration, of the true title to possession. So here it not being disputed that the true title is with the plaintiff, the fact that the defendants' possession commenced within twelve years of the suit should entitle him to succeed. In my opinion, therefore, as against the defendants Nos. 8 and 9 the suit is wit-bin time and the appeal so far as they are concerned must be dismissed.

8. As to the defendant No. 7 his case stands on a somewhat different footing. It is not very clear from the judgment of the Court below but we have been told by the learned Vakil for the appellant, and the statement has not been controverted on the other side that the defendant No. 7 claims the land or a share in the land through or under the defendant Nos. 1 to 3. If that he so, then as against this defendant the Article applicable would prima facie be Article 138. The answer made for the plaintiff is that if the defendant No. 7 is actually or constructively a party to the decree in execution of which the land was sold then the plaintiff is entitled as against him to treat the delivery of symbolical possession as equivalent to the delivery of actual possession. In virtue of such possession the Article applicable ceases to be Article 138 and becomes Article 142, under which the plaintiff is in time. As authority for this position, reference has been made to the Full Bench decisions of this Court in Juggobundhu Mukerjee v. Ram Chunder Bysack 5 C. 584 : 5 C.L.R. 548 : 3 Shome L.R. 68 : 2 Ind. Dec. (N.S.) 979 (F.B.) and Joggobundhu Mitter v. Purnanund Gossami 16 C. 530 : 8 Ind. Dec. (N.S.) 350. (F.B.) and to the decision of the Privy Council in Radha Krishna Chanderji v. Ram Bahadur 43 Ind. Cas. 268 : 27 C.L.J. 191 : 22 C.W.N. 330 : 16 A.L.J. 33 : 23 M.L.T. 26 : 4 P.L.W. 9 : 34 M.L.J. 97 : 7 L.W. 149 : (1918) M.W.N. 163 : 20 Bom. L.R. 502 (P.C.).

9. The learned Vakil for the defendant No. 7 has endeavoured to escape, from these rulings. He has cited the cases of Mahadev Sakharam Parkar v. Janu Namji Hatley 14 Ind. Cas. 447 : 36 B. 373 : 14 Bom. L.R. 115 and Shridhar Madhavrao v. Ganpati Punja Godse 51 Ind. Cas. 721 : 43 B. 559 : 21 Bom. L.R. 357 decided by the Bombay High Court. In these cases a distinction is drawn as regards the right of the purchaser at a sale in execution of immoveable property in certain circumstances to actual possession and in other circumstances to formal or symbolical possession. The view of the Bombay High Court seems to be that the decisions of this Court and of the Privy Council to which I have referred only apply to those cases in which the purchaser at the auction sale is entitled in the circumstances to delivery of formal possession. This point, however, does not appear to have been raised in either of the Courts below. Its determination might well involve questions of fact which have not been investigated. There is no finding in the judgments of the Courts below as to the state of the possession at the time when possession was formally delivered to the plaintiff. We do not know whether there were or were not at all at that time any tenants on the land under the defendants Nos. 1 to 3 and not bound by the decree against those defendants in the mortgage suit.

10.It is conceded that there is no authority in this Court for the distinction recognised in the Bombay cases and in the present case at any rate I am not prepared to consider whether any such distinction would be consistent with the view taken in decisions of this Court by which I am bound and which have received the approval of the Privy Council.

11. I hold that the suit as against defendant No. 7 is within time inasmuch as it was brought within 12 years of the date $n which formal possession was given to the plaintiff.

12. As a last resort the learned Vakil for the appellant argued that his clients are entitled to the benefit of the limitation prescribed by Article 3 of Schedule III of the Bengal Tenancy Act. As regards that argument it is sufficient to refer to the language of the Article which gives the plaintiff two years to recover possession of land which he claims as raiyat, the two years to be counted from the date on which the plaintiff was dispossessed, and to add, that the Article must be read with reference to the facts of this case which I have already stated. Nor can I see any ground in the judgments of the Courts below for the suggestion that if the plaintiff was ever dispossessed the landlord had anything to do with the matter. It is familiar law that the Article in question has no application in a suit between two tenants unless the dispossession of the plaintiff tenant can be attributed to the agency of the landlord. The cases on the subject will be found collected in Haran Chandra Barai v. Hari Charan Barai (Madan Mohan Barai) 61 Ind Cas. 899 : 25 C.W.N. 102.

13. For the reasons which I have endeavoured to give, my view is that the appeal should be dismissed with costs.

Suhrawardy, J.

14. I agree.


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