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Bibi Azimunnissa Vs. Fakera Pasban - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal540
AppellantBibi Azimunnissa
RespondentFakera Pasban
Cases ReferredGirish Chunder Sasmal v. Dwarka Nath Dinda
Excerpt:
limitation - bengal tenancy act (viii of 1886), schedule iii, article 3--limitation act (xv of 1877), section 22--civil procedure code--(xiv of 1882), section 32--parties--adding parties to suit--adding party by a court of its own motion. - .....of limitation.5. that being so, the second plea raised by the learned pleader for the appellant falls to the ground, and it is not necessary for us expressly to deal with it. at the same time we may point out that in this case the plaintiff does not ask for any relief as against fakera pasban, the defendant no. 4; that she did not sue him at all, and that it was not at her request that fakera pasban was made a party to the suit. fakera pasban was added by the court of its own motion, and it was found that he is not in possession, and is not a tenant of the land, and that being so, it does not appear to us that the suit as instituted is barred by two years' rule of limitation provided by article 3 of schedule iii of the bengal tenancy act, as regards the defendant no. 4 fakera pasban......
Judgment:

Rampini and Wilkins, JJ.

1. This is an appeal from the decision of the District Judge of Bhagulpore, dated the 4th July 1898, in which he affirms the decision of the Munsif of Madhepura giving the plaintiff a decree for possession of certain lands. The plaintiff sues as occupancy ryot to recover possession of the land, of which she says she has been dispossessed by the defendants Nos. 1 to 3 who are her landlords. The suit was brought as against these landlords within a period of two years, but a 4th defendant, namely, Fakera Pasban, was added as a party-defendant in the suit by the Court of its own motion, and this party was not added until the 8th of September 1897, when more than two years had expired from the date of the alleged dispossession.

2. The Courts below have held that the suit is not barred by limitation as against this defendant Fakera Pasban, who was added as a party, as he was alleged to be a tenant of the land. The Lower Appellate Court, however, has found that he was not a tenant of the land but was merely fighting the case on behalf of the defendants Nos. 1 to 3 and in collusion with them. The learned pleader for this defendant Fakera Pasban, who is the appellant in this case, contends that this view of the District Judge is wrong, and that the suit is barred by limitation as against him for two reasons. First that the learned Judge was wrong in relying upon the case of Girish Chunder Sasmal v. Dwarka Nath Dinda (1897) I.L.R., 24 Cal, 640, on the authority of which he has held that no question of limitation arises in this case so far as the defendant No. 4 Fakera Pasban is concerned; and secondly, he urges that the period of limitation applicable to this defendant is two years as laid down in Article 3 of Schedule III of the Bengal Tenancy Act. We, however, are unable to admit the correctness of either of these pleas. In the first place we think it has been laid down clearly in the case of Girish Chunder Sasmal v. Dwarka Nath Dinda (1897) I.L.R., 24 Cal., 640, referred to above, that 'where the Court acting on information brought to its notice adds a party, who it thinks is necessary for the disposal of the suit, no question of limitation arises.'

3. In coming to this decision the learned Judges have followed the case of The Oriental Bank Corporation v.. Charriol (1886) I.L.R., 12 Cal, 642. Furthermore we are fortified in our view that these decisions are correct by the case of Khadir Moideen v. Rama Naik (1892) I.L.R., 17 Mad, 12. The pleader for the appellant, however, cites the case of Imamuddin v. Liladhar (1892) I.L.R., 14 All, 524, and he says that the learned Judges, who decided the case of Girish Chunder Sasmal v. Dwarka Nath Dinda (1897) I.L.R., 24 Cal., 640, have gone beyond the ruling laid down in the case of The Oriental Bank Corporation v. Charriol (1886) I.L.R., 12 Cal., 642, inasmuch as that decision was never intended to prescribe that when a Court adds a person as a necessary party to a suit under Section 32 of the Code of Civil Procedure, it is free from the restrictions imposed upon it by Section 22 of the Limitation Act.

4. Now, we have considered the case of The Oriental Bank Corporation v. Charriol (1886) I.L.R., 12 Cal, 642, and in our opinion the Judges, who decided that case, did intend to lay down such a rule, although the provisions of Section 22 of the Limitation Act are not expressly referred to in their judgment in that case. But we think that was their intention from the reasons given at full length in pages 650 to 652 of the report. And we may add that in the case of khadir Moideen v. Rama Naik (1892) I.L.R., 17 Mad., 12, the provisions of Section 22 of the Limitation Act are referred to and it is there laid down [as we think it was intended to be laid down in the case of The Oriental Bank Corporation v. Charriol (1886) I.L.R., 12 Cal, 642), that Section 22 of the Limitation Act does not apply, when the Court of its own motion acts under Section 32 of the Code of Civil Procedure, and orders that the defendant be made a plaintiff; and there can be no question that this was the intention of the learned Judges, who decided the case of Girish Chunder Sasmal v. Dwarka Nath Dinda (1897) I.L.R., 24 Cal, 640. For these reasons we must follow the two rulings of this Court above cited, and from which we see no reason whatever to dissent, and in these circumstances we must hold that no question of limitation arises in the present case, and that the judgment of the District Judge is correct on the question of limitation.

5. That being so, the second plea raised by the learned pleader for the appellant falls to the ground, and it is not necessary for us expressly to deal with it. At the same time we may point out that in this case the plaintiff does not ask for any relief as against Fakera Pasban, the defendant No. 4; that she did not sue him at all, and that it was not at her request that Fakera Pasban was made a party to the suit. Fakera Pasban was added by the Court of its own motion, and it was found that he is not in possession, and is not a tenant of the land, and that being so, it does not appear to us that the suit as instituted is barred by two years' rule of limitation provided by Article 3 of Schedule III of the Bengal Tenancy Act, as regards the defendant No. 4 Fakera Pasban. However that may be, it is not necessary for us to decide this question, seeing that the appeal fails on the first of the grounds we have mentioned. We, therefore, dismiss the appeal with costs.


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