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Bhagaban Chandra Kaibarta Das Vs. Ishan Chandra Kaibarta Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal893,46Ind.Cas.802
AppellantBhagaban Chandra Kaibarta Das
Respondentishan Chandra Kaibarta Das
Cases ReferredRudra Kant Surma Sircar v. Nobo Kishore Surma Biswas
Excerpt:
civil procedure code (act v of 1908), section 97 - appeal from preliminary decree after final decree passed, maintainability of--limitation act (ix of 1908), section 6--transferee from minor, whither can take advantage of section. - .....drawn up or signed till the 18th november 1916. in the meantime, on the 16th november 1916, the present appeal was preferred. it is said that the final decree having been passed at the date of the filing of the present appeal, the present appeal is not competent. the decision relied on in support of that view is the decision in the case of khirodamoyi dasi v. adhar chandra ghose 21 ind. cas. 516 : 18 c.l.j. 321. that case has not been followed in many other cases of this court, namely, the decision of jenkins, c.j., and mookerjee, j., in abdul jalil v. amar chand paul 21 ind. cas. 510 : 18 c.l.j. 223; the case of kanhaiya lal v. tirbeni sahai 24 ind. cas. 827 : 36 a. 532 : 12 a.l.j. 876, the decision of a full bench of the allahabad high court, the case of lakshmi v. marudevi 12 ind......
Judgment:

Fletcher, J.

1. This is an appeal by the defendant against the decision of the learned Subordinate Judge of Tipperah, dated the 14th August 1916, reversing the decision of the Officiating Munsif of Nabinagar. The suit was brought for declaration of title and for partition. Two questions have been raised in this appeal. First of all, that the appeal is not competent, and, secondly, that the suit is barred by limitation. The question as to whether the appeal is competent depends on these facts: The suit was instituted on the 5th July 1913. The preliminary decree was made on the 14th August 1915. The final decree was passed on the 11th November 1916 but it was not drawn up or signed till the 18th November 1916. In the meantime, on the 16th November 1916, the present appeal was preferred. It is said that the final decree having been passed at the date of the filing of the present appeal, the present appeal is not competent. The decision relied on in support of that view is the decision in the case of Khirodamoyi Dasi v. Adhar Chandra Ghose 21 Ind. Cas. 516 : 18 C.L.J. 321. That case has not been followed in many other cases of this Court, namely, the decision of Jenkins, C.J., and Mookerjee, J., in Abdul Jalil v. Amar Chand Paul 21 Ind. Cas. 510 : 18 C.L.J. 223; the case of Kanhaiya Lal v. Tirbeni Sahai 24 Ind. Cas. 827 : 36 A. 532 : 12 A.L.J. 876, the decision of a Full Bench of the Allahabad High Court, the case of Lakshmi v. Marudevi 12 Ind. Cas. 664 : 37 M. 29 : 21 M.L.J. 1063 : 10 M.L.T. 437, and the Full Bench case of the Patna High Court in Wahidunnissa v. Dip Narain Pershad 35 Ind.Cas. 873 : 20 C.W.N. 1174 : 1 P.L.J. 406; I P.L.W. 13. It is to be noticed that one of the learned Judges of the Full Bench in the case reported as Wahidunnissa v. Dip Narain Pershad 35 Ind.Cas. 873 : 20 C.W.N. 1174 : 1 P.L.J. 406; I P.L.W. 13 was also one of the Judges and a party to the decision in Khirodamoyi Dasi v. Adhar Chandra Ghose 21 Ind. Cas. 516 : 18 C.L.J. 321 and that case, of course, must be read subject to the views which were expressed by the learned Judge in that case. There is also a case [Atul Chandra Singha v. Kunja Behari Singha 30 Ind. Cas. 321 : 22 C.L.J. 90] to the decision of which I was a party. These cases have been attempted to be distinguished on this ground, namely, that in the present case at the date when the appeal was filed against the preliminary decree, the final decree had been passed, although it had not been drawn up or signed. So that at the date when the appellant preferred his appeal, the only decree he could appeal against was the preliminary decree, because clearly he was not able to appeal against the final decree as he could not obtain a copy of the said decree to be filed in accordance with the provisions contained in the Civil Procedure Code. It seems to me that the view that I expressed in Atul Chandra Singha v. Kunja Behari Singha 30 Ind. Cas. 321 : 22 C.L.J. 90 is the correct view and that the right of appeal given by Section 97, Civil Procedure Code, is one that is not taken away by the mere fact that the Judge has passed the final decree. I think that in the present case the appeal was competent as against the preliminary decree at the time it was filed. That being so, the only other question left for our consideration in this appeal is the question of limitation.

2. Now, the plaintiff has got to prove that he had been in possession within twelve years prior to the institution of the suit. The view that the plaintiff took was that the person from whom be purchased had been a minor, and, therefore, he got by the assignment the rights of a person under disability that are given by Section 6 of the Indian Limitation Act. That view cannot be supported after the decision of the Full Bench of this Court in the case of Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas 9 C. 663 : 12 C.L.R. 269 : 4 Ind. Dec. (N.S.) 1091 (F.B.). The question, therefore, is whether on the facts the plaintiff has shown that he had been in possession within twelve years prior to the institution of the suit. The learned Judge of the lower Appellate Court has found that the dispossession of the plaintiff's predecessor took place sometime in the year 1900 and the suit was not instituted until July 1913, which is more than twelve years after the date of the dispossession. That being so, it is quite clear that the plaintiff could not succeed in the present suit. In that view, the present appeal must be allowed, the judgment of the learned Subordinate Judge must be set aside and the judgment passed by the Officiating Munsif restored with costs here and in the Courts below.

Shamsul Huda, J.

3. I agree.


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