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Rakhal Chandra Ghose and ors. Vs. Mohendra NaraIn Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.797
AppellantRakhal Chandra Ghose and ors.
RespondentMohendra NaraIn Sen and ors.
Excerpt:
landlord and tenant - kabuliyat, recital in, as to landlord's possession, value of--encroachment by tenant, effect of--landlord, whether entitled to benefit of encroachment--limitation act (ix of 1908), section 7, applicability of--persons jointly entitled to property, dispossession of--possession., suit for--limitation. - .....and more particularly in one kabuliyat executed by the defendant karinath mai in favour of the landlord-defendants, who are the owners of a mouzah contiguous to that of which the plaintiffs were the owners. if without examining the executants of the kabuliyat the recital had been used, there might have been some substance in this contention, but the executant was in fact examined and he makes in his deposition the same statement as that to be found in the kabuliyat.3. it is next contended that the evidence of that defendant is not sufficient for the learned district judge's finding that the land in question in this suit had been reclaimed by the tenant-defendant in ashar 1309 and that the defendant had, therefore, been in possession adverse to the plaintiffs for more than 12 years.....
Judgment:

1. This appeal arises out of a suit No. 496 of 1915 in the Court of the Munsif of Bolpur. The suit was brought by the plaintiffs, who were five in number, for recovery of possession of certain lands on establishment of title. In respect of the shares of plaintiffs Nos. 4 and 5, who were entitled to an extension of time under Sections 6 and 8 of the Limitation Act, the suit has been decreed. As regards the shares of plaintiffs Nos. 1 to 3, the suit has been dismissed both in the trial Court and in the Court of first appeal on the ground of limitation.

2. In the appeal it is first contended that the learned District Judge has erroneously used against the plaintiffs-appellants the recitals to be found in kabuliyats, and more particularly in one kabuliyat executed by the defendant Karinath Mai in favour of the landlord-defendants, who are the owners of a Mouzah contiguous to that of which the plaintiffs were the owners. If without examining the executants of the kabuliyat the recital had been used, there might have been some substance in this contention, but the executant was in fact examined and he makes in his deposition the same statement as that to be found in the kabuliyat.

3. It is next contended that the evidence of that defendant is not sufficient for the learned District Judge's finding that the land in question in this suit had been reclaimed by the tenant-defendant in Ashar 1309 and that the defendant had, therefore, been in possession adverse to the plaintiffs for more than 12 years before suit. What is said by that defendant is that there was measurement in 1309 and that at the time of that measurement only a part of the land had been reclaimed. But in what month that measurement took place is not stated, and we cannot, therefore, accept that statement as negativing the inference made by the Judge that the land had been reclaimed in Ashar 1309. Moreover, there is other evidence on this point and we cannot say that on that evidence the Judge's finding is not justified.

4. It is next said that in so far as the landlord defendants are concerned, their possession should be counted from the date on which these tenant defendants executed kabuliyats in their favour, that is to say, some time in Kartick 1309. If that view were taken the suit would have been within time, but we are unable to accede to that view. The tenant-defendants are tenants of the landlord defendants in this contiguous Mouzah and their encroachments Upon the plaintiffs' Mouzah were made for the benefit of the landlord defendants from the moment they took possession.

5. It is next contended that; inasmuch as the plaintiffs Nos. 4 and 5 have been found entitled to the benefit of Sections 6 and 8 of the Limitation Act, the other plaintiffs are also to be given the benefit of the same extension of time. This contention is based upon Section 7 of the Limitation Act. But that Section, we are of opinion, has no application in the present case, where each individual plaintiff was entitled to sue for his individual share.

6. All the contentions advanced by the plaintiffs appellants thus failing, this appeal must be dismissed with costs.


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