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Maharaja Manindra Chandra Nandi Bahadur Vs. Rangalal Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.728
AppellantMaharaja Manindra Chandra Nandi Bahadur
RespondentRangalal Mondal and ors.
Excerpt:
chowkidari act (vi b. c. of 1870), sections 50, 51 - suit by putnidar for possession of chowkidari chakran lands--limitation applicable--limitation act (ix of 1908), schedule i, articles 142, 144--suit for possession of lands-plaint, amendment of, by addition of new lands--operation of plaint. - .....in the schedule of the unamended plaint. if it does so, what are those lands? if there are such lands the plaintiff would be entitled to a decree in respect of the same. if there are no such lands then the case must be dealt with as stated later on in this judgment. i may here observe that the subordinate judge in his judgment says that 'the plaintiffs struck out all the plots claimed at first and put in new plots altogether of more value than that of plots claimed originally.' it is not, however, clear to me whether the subordinate judge by that statement meant to find or had it in his mind that none of the plots added were included in the original plaint. from an inspection of the plaint it appears that the schedule was erased and it may be that it was to this fact that the.....
Judgment:

John Woodroffe, J.

1. This appeal arises out of a suit for possession of certain chowkidari chakran lands. The suit was filed on the 3rd March 1911. The plaint set out the resumed lands in a schedule containing 9 plots of land of an area of 26 bighas said to be of the value of Rs. 305. On the 16th August 1911 an application was made for what was called an amendment of this plaint and was granted on the 29th August 1931. The result of this order was that the suit became one for 59 plots in lieu of 9 plots of an area of 69 bighas instead of 26 bighas and for lands of the value of Rs. 705 instead of Rs. 305. The question, therefore, which first arises is whether this so-called amended plaint includes or pot the lands set out in the schedule of the unamended plaint. If it does so, what are those lands? If there are such lands the plaintiff would be entitled to a decree in respect of the same. If there are no such lands then the case must be dealt with as stated later on in this judgment. I may here observe that the Subordinate Judge in his judgment says that 'the plaintiffs struck out all the plots claimed at first and put in new plots altogether of more value than that of plots claimed originally.' It is not, however, clear to me whether the Subordinate Judge by that statement meant to find or had it in his mind that none of the plots added were included in the original plaint. From an inspection of the plaint it appears that the schedule was erased and it may be that it was to this fact that the Subordinate Judge referred. It, therefore, becomes necessary, as I said, to definitely ascertain whether the so called amended plaint includes any lands as set out in the schedule to the unamended plaint.

2. The next point which we consider is as regards such lands as were added on the 16th August 1911 and were not included in the original plaint. The question which arises as regards such lands is, when was the suit instituted as regards them.

3. For the respondent it is contended that the suit was instituted as regards all the lands on the 3rd March 1911 when the plaint was received. It might be so if this were a case of amendment proper; but this is not so, because this is not a case of amendment properly so called, but a case of an addition of entirely new lands, and, therefore, as regards such new lands the suit which is taken to have been filed will date from the date when the claim was made in respect thereof, namely, on the 16th August 1911. Therefore, as regards all lands not included in the plaint at first filed, the suit must be taken to have been instituted on the 16th August 1911. As regards all lands not included in the plaint at first filed there are two dates upon which it may be argued that the suit can be taken to have been instituted, namely, either on the 16th of August 1911 when the application was made for amendment or on the 29th August 1911 when the application was granted, Something may be said on behalf of either of these dates, but we are in favour of the respondent's view of taking the earlier date, namely, the 16th August 1911, seeing that this is a point which is not seriously contested. We therefore, hold that as regards all lands not included in the plaint as first filed, the suit must be taken to have been instituted on the 16th August 1911.

4. The next point, therefore, which arises is whether the so it is barred or not as regards those lands; and this raises the question whether Article 142 or Article 144 of the Limitation Act applies, for the respondent it has been contended that Article 144 applies, whereas the appellant has put forward Article 142. It is true that paragraph No. 4 of the plaint alleges that the properties described in the schedule were held by certain chowkidars as chakran lands under the plaintiffs the se-patnidars who obtained their services and enjoyed the said lands in se-patni right. But this as a possession under another title. This is not a case in which possession was obtained under the resumption proceedings and was then lost. In my opinion, therefore, Article 144 applies to this case. The Court must, therefore, ascertain when possession became adverse to the plaintiffs, and for this purpose it must find when the lands were settled by the first defendant, with the tenants and when the appellants tenants entered upon the lands and was such possession to the knowledge of the plaintiffs. Either party may adduce further evidence upon this question of possession, and such evidence may be taken either by the lower Appellate Court itself or under its direction by the Court of first instance.

5. I may draw here the attention of the lower Appellate Court to the 8th paragraph of the written statement of the second and third defendants. It runs as follows:

The defendant No. 1, after getting the land in suit transferred to him, caused notices to be served in Goyta village and adjoining villages and proclaimed by beat of drum that he will settle the same. The plaintiffs were fully aware of these. They were also aware of the settlement of the land to these defendants. They did not make any objection at the time of the settlement of the land to these defendants. The defendants tare in possession of the land for 12 years paying rent to defendant No. 1. The plaintiffs did not make any objection to these knowing full well all the facts. They never made any opposition to these defendants' possession of the said lands.

6. The judgment and decree, therefore, of the Subordinate Judge must be set aside and we must remit this case to the lower Appellate Court in order that the Subordinate Judge may deal with the same in accordance with the directions contained in this judgment.

7. Costs of this appeal will abide the result of the trial by the lower Appellate Court on remand.

Cuming, J.

8. I agree.

9. In Appeal from Appellate Decree No. 2150 of 1913.

10. The learned Vakil for the appellant does not press this appeal.

11. This appeal is, therefore, dismissed with casts.


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