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Siva Prosad Saw and anr. Vs. Bhadramoni Dassi - Court Judgment

LegalCrystal Citation
Subject Family;Property
CourtKolkata
Decided On
Reported inAIR1929Cal93,114Ind.Cas.139
AppellantSiva Prosad Saw and anr.
RespondentBhadramoni Dassi
Cases ReferredRunchordas v. Parvatibhai
Excerpt:
- .....defendants 1 and 2 had made in 1907 was aware of the fact that the said defendants had been in adverse possession of the share of karnini in the properties in suit and that inasmuch as the said defendants being thus in possession for a period of over 12 years had acquired an indefeasible right to that share the plaintiff has no right to institute the present suit, because what-ever right kamini had in the property had, before her death, been extinguished by adverse possession on the part of the defendants. in support of this contention, much reliance has been placed on the decision of the judicial committee in the case of vaithialinga mudaliar v. srirangath anni .4. it is necessary to consider this decision of the judicial committee somewhat in detail in view of the misapprehension,.....
Judgment:

1. This appeal has arisen out of a suit for recovery of possession of certain properties on establishment of the plaintiff's title thereto and for certain other reliefs. The properties in suit comprised a large number of cadastral survey plots of which one only, namely, cadastral survey plot No. 521, need be specially mentioned in view of the contentions that have been urged in connexion with the appeal. The trial Court decreed the suit in part declaring the plaintiff's title to-plot No. 521 and directed that the plaintiff would recover possession of the said plot from the defendants on payment of Rs. 100 to the latter as compensation An appeal was preferred by the plaintiff, and a cross-appeal by the defendants; from the decision of the trial Judge. The learned Additional District Judge has decreed the plaintiff's appeal and dismissed the cross-appeal, thereby decreeing the plaintiffs' suit in full. The defendants have thereupon preferred this second appeal.

2. It is necessary to state only a few facts in order to appreciate the grounds that have been urged in connexion with this appeal. The lands in suit are said to appertain to a jote of one Gurai Bera. Gurai Bera died leaving a widow named Susila and two daughters, Kamini Dasi and Bhadramoni Dasi, the latter being the plaintiff in the present suit. After the death of Susila, Kamini and Bhadramoni jointly possessed all the properties, and while they were thus in possession, defendants 1 and 2 having got a decree for money against the husband of Kamini and in execution thereof put up some of the properties alleging that they belonged to Kamini's husband and purchased and took possession of the same some time in 1907. In 1909 the plaintiff instituted a suit for declaration of title to and recovery of possession of a half-share in the properties that had been purchased and taken possession of in the aforesaid way by defendants 1 and 2. This suit included all the lands covered by the present suit except C.S. dag No. 521. The cause of action in that suit was said to be a dispossession that had been effected by defendants 1 and 2 in 1314, that is to say, sometime in 1907. This suit eventually terminated in a decree by which the title of Bhadramoni to a half share in the properties was declared and possession thereof was decreed in her favour. The present suit was instituted by Bhadramoni after the death of Kamini which took place in Bhadra' 1330, the plaintiff's allegation being that as the surviving daughter of her father she became entitled to Kamini's share and went to take possession of the same but was resisted by the defendants. The grounds urged on behalf of the appellants are mainly three.

3. The first ground is to the effect that the question of limitation had not been adequately dealt with by the Courts below. It is urged that although a suit of this description would ordinarily be governed by Article 141, Schedule 1, Lira. Act, in view of special features of this case the article that is to be considered applicable is Article 144. It is said that the plaintiff, after the purchase which defendants 1 and 2 had made in 1907 was aware of the fact that the said defendants had been in adverse possession of the share of Karnini in the properties in suit and that inasmuch as the said defendants being thus in possession for a period of over 12 years had acquired an indefeasible right to that share the plaintiff has no right to institute the present suit, because what-ever right Kamini had in the property had, before her death, been extinguished by adverse possession on the part of the defendants. In support of this contention, much reliance has been placed on the decision of the Judicial Committee in the case of Vaithialinga Mudaliar v. Srirangath Anni .

4. It is necessary to consider this decision of the Judicial Committee somewhat in detail in view of the misapprehension, that is involved in the arguments that have been advanced as based on it. In that case, the facts to put them quite shortly, were these : A Hindu died in 1849 leaving a widow G who survived until 1902. The widow made an adoption in 1862 and thereafter she put the adopt' ed son in possession of certain properties belonging to the estate and reserving some others for her own maintenance. The adopted son then began to deal with the properties of which possession was given to him as absolute owner thereof. The adopted son died in 1864 leaving a widow M., who adopted a son after her husband's death. This adopted son died in 1881, leaving a widow who died in 1882 but 'during their lifetime they possessed the properties. On the death of this widow in 1882 her mother-in-law M. i.e. the adoptive mother of her husband, took possession of the properties for a Hindu widow's interest and held it till 1884 when G forcibly ejected her. M then instituted a suit against G and others for recovery of possession of the properties alleging that her husband was the adoptive son of C, while G denied this adoption. This suit was commenced in 1887 and terminated in 1892 in a decree in favour of M in which the adoption was declared invalid but M's title by adverse possession was found. G died in 1902, and upon that the reversionary heirs of G's husband who had died in 1849, instituted a suit for recovery of possession against the persons who were then in possession. 5. The two main defences of the defendants which the Judicial Committee considered were : first, that the suit was barred by the result of the litigation of 1887-92, the plaintiff's claim being barred by the decision which had been obtained against G by M, the predecessor of the defendants, in which M's title by adverse possession had been declared ; and second, that the suit was barred by limitation, because the plaintiff's claim depended upon displacing the apparent adoption and the suit was not instituted within 12 years of the adoption being made, as it should have been under Act. 9 of 1871, Schedule 2, Article 129, and because Article 141, Act 15 of 1877, would not apply as this last-mentioned Act did not come into force when that period of 12 years expired,--the said period having expired in 1874. The Judicial Committee disposed of the suit on this last-mentioned defence. Their Lordships also dealt in detail with the authorities which had been cited at the Bar in support of the first of these defences prefacing; their observations with these words:

A protracted argument was submitted to the Board on the question whether under the Hindu Law adverse possession against a widow in possession of an estate for a Hindu widow's interest bars a reversionor. While it is not necessary in the view which will later be announced by the Board on the question of limitation in this casa to make any formal pronouncement upon this point, it may be convenient to say that the authorities referred to wore as follow.

5. Then followed a detailed examination of the authorities, and after that their Lordships observed thus:

The result of the cases to which their Lordships have referred shows, in their opinion, that the Board has invariably applied the rule of the Katama Nachiar v. Rajah of Shivagunga [1863] 9 M.I.A. 543 as sound Hindu Law where that rule was applicable.

6. Now the Shivagunga case [1863] 9 M.I.A. 543 related to the case of a decree fairly and properly obtained in the presence of a Hindu widow. To cases of such decrees their Lordships' observations unquestionably apply. Both the proposition that was deducible from the principles laid down in that case, namely that:

it is impossible to escape the conclusion that an adverse possession which barred the widow will also bar the heirs (Per Jackson, J. at p. 510),

7. Or that,

when we look at the widow as a representative, and so that the reversionary heirs are bound by decrees relating to her husband's estate which are obtained against her without fraud or collusion, wo are of opinion that they are also bound by limitation, by which she, without fraud or collusion, is barred (per Sir Barnes Peacock, C. J. at p. 509)--

8. propositions enunciated in the case of Nobin Ghunder v. Issur Ghunder [1868] 9 W.R. 505 need not be taken to have been approved of by the Judicial Committee. The law of limitation was altered by Act 9 of 1871 and Act 15 of 1877. Their Lordships did not consider the effect of the alteration of the law and the case, in my opinion, is not to be understood as overruling the uniform current of decisions of all the Courts in India which have had the concurrence and approval of their Lordships all along. In Harinath Ghatterji v. Mothoor Mohan Goswami [1893] 21 Cal. 8 the Judicial Committee drew a distinction between the effect of a decree adverse to the widow as repersenting the estate and the effect of adverse possession as against her, and held that Article 141 in the Schedule to Act 15 of 1877 fixing the date of female heirs' decease as the starting point for limitation, did not alter the existing law as to the effect of a decree adverse to the predecessor as representing the estate, nor did the said article or Article 142 in the Schedule to Act 9 of 1871 give a new starting point to the successor. This decision did not decide that adverse possession against the widow for the statutory period precludes the re-versioners from availing themselves of the benefit of Article 141, but the crux of the decision was the decree which barred the reversioners on the principle of resjudicata. The result, no doubt, as pointed out by Norris and Macpherson, JJ. in the case of Hari Nath v. Mothoor Mohan [1893] 21 Cal. 8 is anomalous, as no length of possession adverse to the widow would bar the reversioners who have 12 years reckoned from the widow's death to sue, but if the widow sues to recover the property from the person in adverse possession and fails, the reversioners are bound by the decree. But it should be remembered that law always is not logic.

9. The Full Bench decision of this Court in Sreenath Knar v. Prosunno Kumar Ghose [1883] 9 Cal. 934 is now the settled law in all the Indian Courts and there is no real reason to suppose that the Judicial Committee intended to touch it by their decision in Vaithialinga Mudaliar v. Srirangath Anni A.I.R. 1925 P.C. The observations of the Judicial Committee in Runchordas v. Parvatibhai [1899] 23 Bom. 725 are clear authority for the proposition that Article 144 which makes the period of limitation commence from the date when the possession of the defendant is adverse to the plaintiff does not apply where a suit is otherwise specially provided for. The Courts below have in our opinion, been right in holding that Article 141 applies to the case. The first ground urged in support of the appeal must, therefore, fail.

10. The second ground urged is to the effect that the plaintiff's claim in so far as it relates to C.S. dag No. 521 is barred by Order 2, Rule. 2, Civil P.C. This argument overlooks the fact that the cause of action in the previous suit was entirely different from the cause of action in the present one. In the previous suit the plaintiff alleged that he had been dispossessed by defendants 1 and 2 after they had made the purchase in 1909 at the auction sale of the properties other than C.S. dag No. 521. The causes of action in the two suits being different, Order 2, Rule 2 has no application whatsoever. It is only where some relief is abandoned or omitted from the prayers that are made on a particular cause of action that that rule has any application. This argument therefore has no force.

11. The third ground that has been urged in support of the appeal relates to the question of the sufficiency of the finding at which the learned Subordinate Judge has arrived on the question of the relinquishment that was set up on behalf of the defendants. The defendants' case was that after the decree in the earlier suit there was a relinquishment by the plaintiff in favour of defendants 1 and 2 in respect of the interest of Kamini and that there was an arrangement under which the parties came to be in separate possession of specific plots of land. The Additional District Judge, in disagreement with the finding of the trial Court, has held that the story as regards this relinquishment cannot be accepted. This is a pure question of fact and it is not possible for us in second appeal to interfere with the finding, as regards this matter, that has been arrived at by the learned Additional District Judge. This ground also fails. All the contentions urged on behalf of the appellants fail and this appeal is accordingly dismissed with costs.


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