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Mohendra Nath Sow and anr. Vs. Rajani Kanta Sow and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.895
AppellantMohendra Nath Sow and anr.
RespondentRajani Kanta Sow and anr.
Excerpt:
limitation act (ix of 1908), schedule i, article 142 - chaukidari chakran lands, resumption of--patnidar, suit by, for possession of resumed lands--discontinuance of possession--limitation. - .....in a resumed chowkidari chakran land included in a patni held from the maharaja of burdwan. the learned judge of the lower appellate court has held that the chowkidari chakran land was included in the patni and that, therefore, the plaintiffs had a title to an undivided share in it. but he has held that the present plaintiffs' suit is barred by limitation. that is the only question we have got to consider in this appeal. the learned judge, i think, is quite right when he states that there are two articles material for consideration in this case, namely, articles 142 and 144 of the first schedule to the indian limitation act. article 144 i do not think in the circumstances of the case can apply, because there is a difficulty about showing whether the title became adverse to the.....
Judgment:

Fletcher, J.

1. This is an appeal preferred by the plaintiffs against the decision of the learned District Judge of Burdwan, affirming the decision of the Munsif of the same place. The suit was brought to recover possession of an undivided share in a resumed Chowkidari Chakran land included in a Patni held from the Maharaja of Burdwan. The learned Judge of the lower Appellate Court has held that the Chowkidari Chakran land was included in the Patni and that, therefore, the plaintiffs had a title to an undivided share in it. But he has held that the present plaintiffs' suit is barred by limitation. That is the only question we have got to consider in this appeal. The learned Judge, I think, is quite right when he states that there are two Articles material for consideration in this case, namely, Articles 142 and 144 of the First Schedule to the Indian Limitation Act. Article 144 I do not think in the circumstances of the case can apply, because there is a difficulty about showing whether the title became adverse to the plaintiffs more than twelve years prior to the institution of the suit. The judgment of the learned Judge has not been attempted to be supported on the provisions of Article 144. But what is stated is this: that Article 142 applies. It is said that the suit is a suit for possession of immoveable property of which the plaintiffs while in possession have been dispossessed or have discontinued the possession, and it is said that the plaintiffs in their plaint distinctly alleged that they were in possession of the Chowkidari Chakran land by having the right in lieu of the services of the Chowkidars No doubt, the plaintiffs did make such an allegation. The question is whether such a possession is sufficient, and whether that possession having come to an end, the plaintiffs have been out of possession for more than 12 years prior to the institution of the suit. I think it is quite clear that where the Chowkidari Chakran lands were found to be included in the Patni and the plaintiffs had been in possession, according to their own statement, by receipt of the services performed by the Chowkidars, it was just as much possession as where the possession was fey receipt of rent in cash or in kind or any other service. It seems to me quite clear that the plaintiffs were in possession of these lands. In the third paragraph of their plaint, the plaintiffs accurately represent what was the nature of their possession. It is quite clear and it is not denied that that possession discontinued, and discontinued because the land having been resumed the Chowkidars refused to go out. They ceased to render their services, their services were not required and the land was resumed, But they would not go out and, therefore, the plaintiffs' possession ceased. Did it cease more than twelve years prior to the institution of the suit? The finding is that it did. In that view, it is quite clear that the case falls within Article 142 of the First Schedule to the Indian Limitation Act. That Article 142 applies, is obvious. The plaintiffs having been in possession and having been dispossessed, it matters not whether the dispossession was by the present defendants or anybody else. They have been out of possession for more than twelve years and Article 142 prevents them from proceeding with the suit.

2. In the result, I agree with the conclusion arrived at by the learned Judge of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed with costs to be paid only to the principal defendants, Babu Mohendranath Roy's clients.

Syed Shamsul Huda, J.

3. I agree.

Appeal No. 2592.

4. The judgment that we have just delivered in Appeal No. 2298 will govern this case also. This appeal is also dismissed with costs to be paid to Babu Mohendranath' Roy's clients.


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