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Kedarnath Banerjee and ors. Vs. Bhootnath Chatterjee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal125
AppellantKedarnath Banerjee and ors.
RespondentBhootnath Chatterjee
Cases Referred and Noyes v. Crawley
Excerpt:
suit for possession - previous dispossession--limitation--adverse possession--evidence--onus. - .....they were in possession of the land in dispute within twelve years from the institution of the suit. the possession set up by the plaintiffs is, that they excavated this land for the purpose of obtaining bricks, which were buried there. the munsif found that this was false. the district judge comes to no very definite finding on this point, though, so far as we can learn his opinion, he seems to have thought that it was not true; but, that however that might be, the plaintiffs' real cause of action was the registration-proceedings. to make out his cause of action in a case of this kind, the plaintiff had to show the date on which he was dispossessed,-that is to say, to show that either on the particular date on which he stated the dispossession to have taken place, or some other.....
Judgment:

Prinsep, J.

1. This is one of the many cases that have recently been before the Courts arising out of the Land Registration Act. The defendant succeeded, as against the plaintiffs, in getting his name registered as in possession of four katas of land.

2. The plaintiffs have brought the present suit to obtain possession by proof of title, alleging that the registration-proceedings were their cause of action,-that is to say, as we understand it, that; they wore in possession up to the date on which those proceedings were taken. The defendant says, that he has been in possession for the last twenty-five years under a verbal gift made in his favour by one who is said to have been the plaintiff's ancestor.

3. Now the first point which the District Judge had to decide was whether, under such circumstances, the plaintiffs have proved that they were in possession of the land in dispute within twelve years from the institution of the suit. The possession set up by the plaintiffs is, that they excavated this land for the purpose of obtaining bricks, which were buried there. The Munsif found that this was false. The District Judge comes to no very definite finding on this point, though, so far as we can learn his opinion, he seems to have thought that it was not true; but, that however that might be, the plaintiffs' real cause of action was the registration-proceedings. To make out his cause of action in a case of this kind, the plaintiff had to show the date on which he was dispossessed,-that is to say, to show that either on the particular date on which he stated the dispossession to have taken place, or some other period within twelve years from the date of the institution of the suit, he was in possession of this land. As an authority for this view of the law we would refer to the judgment of the Privy Council in the case of Rajah Sahib Perhlad Sein v. Maharajah Rajender Kishore Singh 12 Moore's I.A. 337; Dawkins v. Lord Penrhyn 4 App. Cas. 51 and Noyes v. Crawley 10 Ch. D. 31 36. In the present case, until the plaintiffs could show that their suit was not barred by limitation,-that is to say, that they were in possession within twelve years from the date of the institution of the suit,-they could not call upon the defendant to prove his title under the alleged verbal gift. We, therefore, remand this case to the lower Appellate Court, that it may re-try the appeal in accordance with the above observations. Costs to follow the result.


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