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Tekait Ram Chunder Singh Vs. Modho Kooery and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal411
AppellantTekait Ram Chunder Singh
RespondentModho Kooery and ors.
Cases ReferredPetamber Baboo v. Nilmony Singh Deo I.L.R.
Excerpt:
ghatwal - adverse possession--limitation in suit by landlord against tenant of a permanent tenure--limitation act xv of 1877, schedule 2, article 139. - .....rent of the year 1211 b.s. (1804--5 a.d.,). it has not been shown to us that a good title, by 60 years' possession, had become perfected while the regulation was still operative; and it apparently ceased to be operative when act xiv of 1859 came into force in 1862.8. but the limitation is pleaded on another ground, viz., that conceding that the plaintiff, as ghatwal, was not bound by the act of his remote ancestor and predecessor, or by the ratification of that act by his more immediate predecessors, still he would be bound to sue to enforce his right to set it aside within twelve years of the accrual of that right, or within twelve years from the date when the possession of the defendants became adverse to him; and for this contention we find authority in babaji v. nana i.l.r. 1 bom......
Judgment:

Tottenham, J.

1. The subject of this suit is a property called turuf Lalgurh, etc., which forms a portion of the ghatwali of Pathrole, and this is one of the Birbhum ghatwalis, though it is situated within the Sonthal Pergunnahs.

2. The plaintiff Ram Chunder Singh is the ghatwal; and the defendants, appellants in this appeal, are the three widows of Bunwari Lall Singh. The object of the suit is to recover from the defendants possession of the property in suit, with a declaration by the Court that the mokurruri khorposh lease alleged to have been granted by Digbijoy Singh to Kanhya Lall Singh, the father of Bunwari Lall, is not binding upon the plaintiff, and that it is invalid in law. The plaintiff further prays for mesne profits from 1282 to 1285 (1875-76 to 1879).

3. Digbijoy Singh was, in his day, ghatwal of Pathrole, and was the great-grandfather of the plaintiff. The estate of the defendants is under the management of the Court of Wards, and their defence has been conducted by it. It is alleged that the property was granted to Kanhya Lall (who was second son of Digbijoy) as a shikmi mokurruri khorposh tenure, at a rental fixed in perpetuity; that it was created before the permanent settlement; and that it has ever since its creation been possessed as a permanent hereditary tenure by the defendants and their predecessors in uninterrupted descent at a rent which never has been changed.

4. The plaintiff is fifth in descent from the grantor, but the first defendant's husband was the son of the original grantee. The uninterrupted possession is not disputed, nor is it contended that any of the plaintiff's predecessors ever sought to resume the grant. Plaintiff, when his father died in 1865, was a child of nine years, and hie estate was managed by the Court of Wards. During his minority, which terminated in 1873, the Court of Wards recognized Bunwari Lall as holding a valid title; and this suit was not instituted until 1879, nearly six years after the plaintiff's majority.

5. The suit was tried before the Subordinate Judge of Deogurh, who held that the grant was in its nature one for maintenance and not saddled with any condition as to Police duties; that, whatever, its nature, it was not binding upon the plaintiff; that the plaintiff had not ratified it by any act of his; and that the suit was not barred by limitation. He accordingly gave a decree in favour of the plaintiff for possession, to take effect from the 1st day of the Bengali year 1288 (12th April 1881). He disallowed the claim for mesne profits.

6. The defendants, having appealed against this decree the plaintiff has filed a cross appeal as to the mesne profits, and against the lower Court's ruling that the question of the defendants' title is not res judicata in favour of the plaintiff by reason of the decree of this Court, dated the 15th of March 1875, in a suit regarding certain compensation money paid on account of land taken up for the Bast Indian Railway, where it was determined that Bunwari Lall had no valid right in the lands pertaining to their ghatwali.

7. The main contention which we have to consider in the appeal of the defendants' is that the suit is barred by limitation, and on the merits it has been urged that the grant to Kanhya Lall was, on various considerations, a valid one, binding upon the successor of the grantor. Obviously we must first deal with the question of limitation. The learned Counsel for the appellants submitted that, inasmuch as the grant had been in force for more than 60 years before the suit was brought, it was protected by Section 3 of Regulation II of 1805; but we think that that Regulation having been repealed, its provisions cannot avail the defendants unless it be shown that, while it was still in force, the defendants had already acquired an indefeasible title by 60 years enjoyment of the property under the grant made by Digbijoy Singh. But the Regulation had already become obsolete when it was repealed by Act VIII of 1868; and, although it was alleged that the grant was made before the permanent settlement, we have no evidence in its favour earlier than a receipt for rent of the year 1211 B.S. (1804--5 A.D.,). It has not been shown to us that a good title, by 60 years' possession, had become perfected while the Regulation was still operative; and it apparently ceased to be operative when Act XIV of 1859 came into force in 1862.

8. But the limitation is pleaded on another ground, viz., that conceding that the plaintiff, as ghatwal, was not bound by the act of his remote ancestor and predecessor, or by the ratification of that act by his more immediate predecessors, still he would be bound to sue to enforce his right to set it aside within twelve years of the accrual of that right, or within twelve years from the date when the possession of the defendants became adverse to him; and for this contention we find authority in Babaji v. Nana I.L.R. 1 Bom. 535 and in Petamber Baboo v. Nilmony Singh Deo I.L.R. 3 Cal. 793. The plaintiff's father and immediate predecessor as ghatwal died in 1865, so that the possession of the defendants then became adverse to the plaintiff, and, notwithstanding his minority, which terminated in 1873, limitation then commenced to run, but the suit was not brought until fourteen years afterwards. When the plaintiff reached his majority there were still four years remaining within which he might have brought the suit; but he allowed a further period of two years to, elapse, and it lies upon him to show that his suit is not barred by limitation. For the plaintiff it was contended that the suit is hot barred because it is one by a landlord to recover possession from a tenant, for which the law allows a period of twelve years running from the date when the tenancy is determined. And it is alleged that the tenancy was determined only in 1875, when the plaintiff refused to accept the rent tendered by the Court of Wards on behalf on the defendants. Plaintiff claims a period of twelve years from 1875; and his suit was brought within four. The lower Court has held that, if the defendants be considered merely as tenants, no question of limitation arises; but that if the title set up by the defendants as mokurruridars gives them a right to plead limitation against the plaintiff, the limitation will run only from the date when plaintiff had notice of the claim to such title, and upon the evidence the Court held that the first notice of it to the plaintiff was in 1875, when the, suit for the compensation money above mentioned was brought. Thus it was held that the suit was not barred by limitation.

9. We think it is clear that the article in the Schedule No. 2 of the Act, which provides for a suit by a landlord to recover possession from a tenant, and gives twelve years from the determination of the tenancy, refers to suits in respect of tenancies in which the leases have expired, and so have terminated, or in respect of tenancies at will terminable by due notice. It does not refer to a suit by which the plaintiff seeks to recover from the holder of a title permanent in its nature.

10. It is certain that the defendants are in possession of the property in suit by virtue of a title which, if valid, is of a permanent character, not determinable by notice from the plaintiff. If it is not valid, the defendants can only be got rid of by a suit in which they are entitled to plead, and to show that they are protected by the rules of limitation. Then if the plaintiff be considered to be a reversioner, the period of limitation runs from the date when his estate fell into possession, viz., the date of his father's death in 1865, and in this view we should be compelled to say that his suit is too late. It was argued that, as he was formally appointed to be ghatwal only in 1873, after he came of age, the twelve years should be counted from that date; but we are of opinion that this contention is untenable, for he was practically invested with the ghatwali when his father died, and the estate was taken on his behalf under the management of the Court of Wards. The perwana of appointment of ghatwal in 1873 was a mere formal imposition upon him of the duties and responsibilities of the office which during his minority he was incompetent to undertake.

11. And if the suit be treated as one to which no article of the Schedule specially applies, then it is one which must be brought within twelve years from the time when the possession of the defendants became adverse to the plaintiff; and in such case, too, it is clear that the possession has been adverse from the moment of the plaintiff's succession in the room of his father.

12. As regards notice to the plaintiff of an adverse claim on the part of the defendants, we think that it is not a case in which any special notice was required. It is not a case as between a zamindar and a ryot who, having been dealt with as an ordinary ryot, sets up a mokurruri claim. Here the plaintiff is a ghatwal, and, ipso facto, claims the right of khas possession of the whole of the ghatwali property. It is not pretended that, the defendants or their predecessors were ever considered to be ordinary ryots, or to hold under any title less than that of a mokurruri khorposh grant. We hold, therefore, that there is no valid ground for the contention that limitation did not begin to run against the plaintiff in 1865, when his father, the last ghatwal, died; and we must hold that the suit is barred by limitation, and should have been dismissed on that ground by the lower Court.

13. This finding makes it unnecessary to inquire further into the validity of the grant made by Digbijoy Lall. We may observe, however, that it could not be affected by Regulation XXIX of 1814, as it was made before that Regulation was passed. Our decision on the question of limitation renders it unnecessary also to dispose of the plaintiff's plea of res judicata.

14. We reverse the decree of the lower Court, and dismiss the suit with costs of both Court.


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