1. This appeal is by defendants 1 to 6. The plaintiff instituted the suit for a declaration of his title to and to recover khas possession of certain lands as appertaining to his Zemindari. The appellants, who were the contesting defendants, are the proprietors of another Zemindari. The plaintiff's case is that his grandmother was dispossessed by the predecessor in interest of the defendants in the year 1285. The learned Munsif decreed the suit in part. The present appellants appealed. The learned Subordinate Judge came to the conclusion that the plaintiff had not established his title to some of the lands decreed in his favour and allowed the appeal in part The defendants have now appealed to this Court. The plaintiff has filed a cross-objection in which he contends that the decree of the plaintiff should be restored. Three points have been taken on behalf of the appellants: (1) that the suit is barred by limitation; (2) that it is barred under Section 149, Estates Partition Act 1876 and (3) that when the learned Subordinate Judge did not accept the plaintiffs story with regard to dispossession he should have dismissed the suit.
2. In order to understand the argument with regard to the point of limitation it is necessary to set out certain facts. The plaintiff's grandfather Goloke Nath Roy Choudhury was the proprietor of the Zemindari and died in the year 1846. He was succeeded by his widow Janhavi Choudhurani who had the estate of a Hindu widow. In the year 1848 she adopted Baikuntha Nath Roy. After attaining majority Baikuntha executed an ekrarnama in favour of the lady by which he gave her a life interest in the estate. This document was executed in 1865. The lady was dispossessed in the year 1878. Baikuntha died in 1887 and the lady died in 1900. She was succeeded by Baikuntha's widow Rani Dinamoni Choudhurani who had the estate of a Hindu widow. She adopted the plaintiff in 1914 and died in 1918. It is thus clear that the plaintiff got an absolute estate in the year 1914. He alleges previous possession and dispossession and on these facts Article 14 2, Limitation Act, would apply. Mr. Ghose, however, has argued that Article 140 applies in view of Ex. 4 which is a document executed by the natural father of the plaintiff in favour of Dinamoni. Dr. Basak has contended on the other side that this document does not affect the period of limitation for three reasons. The first reason is that no such case was ever made in the plaint. The suit was prima facie barred by limitation. It was therefore for the plaintiff to set out the facts on which he relied to show that the suit was not barred. This part of his case will be found in para. 3 of the plaint. It sets out that though he had obtained an absolute estate he was a minor and Dinamoni continued to hold possession of the property as his guardian. If he had intended to make out a case that Article 140 applied in view of the document. Ex. 4 he should have definitely raised the question in his plaint.
3. The second ground alleged is that Ex. 4 did not create any life estate in favour of Dinamoni. This document was executed by the plaintiff's father in favour of Dinamoni and really contains the terms of the agreement made between him and Dinamoni with regard to the adoption of the plaintiff It is obvious that such a document could not in itself create any estate in favour of Dinamoni. The executant had no interest in the property at all and it was not possible for him to carve a life estate out of an absolute estate which did not exist and might never come into existence. The plaintiff can only succeed if it can be shown that although no estate in favour of Dinamoni was created he is prevented from questioning the agreement made with her by his father. It is clear that no case of estoppel can arise as the plaintiff does not claim the estate through his father. Mr. Ghose contended that what the father was really doing was to make a contract for the benefit of his minor son, who is therefore bound by it. There can be no question that the son was benefited by it. This aspect of the matter was considered in the case reported in Krishnamurthi Ayyar v. Krishnamurthi Ayyar 1927 PC 139. The relevant portion of the judgment is to be found at p. 263 (of 54 I A) where it is pointed out 'that the adoption cannot be undone; it cannot therefore be conditional.' I am therefore clearly of opinion that Ex. 4 did not create any life estate in favour of Dinamoni.
4. The third ground taken is that the claim had already become time barred before the plaintiff was adopted. I have already noted that dispossession took place while Janhavi Choudhurani was in possession of a life estate under the deed of agreement executed by Baikuntha, if Baikuntha would have lived twelve years after the death of the lady to institute a suit, as in his case Article 140 would apply; as a matter of fact, he predeceased her. She was succeeded not by the reversioner of Baikuntha but by another lady with the estate of a Hindu widow. The result of this is that time had not begun to run until the plaintiff acquired this estate. This contention therefore has no substance in it. The result of these findings is that the suit is governed by Article 142 and the plaintiff had three years after the attainment of his majority. The question therefore arises on what date he obtained his majority. The learned Munsiff came to a finding that this happened in the month of Aswin. This finding serves no useful purpose because if the plaintiff attained his majority in the first part of Aswin the suit is barred; if otherwise, it is not. There is, in fact, no evidence at all on the point and the plaintiff did not even set out in his plaint the date on which he attained his majority, nor did he give any evidence. The explanation possibly is that in the original Court the suit appears to have proceeded, upon the basis either that Article 140 applied or that time began to run from the date when the Court of Wards made over possession of the estate. It was clearly for the plaintiff to show on what date he attained his majority and as he did not do so the suit is barred.
5. I will now deal with Dr. Basak's third point that the learned Subordinate Judge should have dismissed the suit when he did not accept the plaintiff's story of dispossession. What the learned Subordinate Judge did was to assume that the dispossession was at the latest in the year 1278 and to find that even then the suit was not barred. But the fact is that the plaintiff never did make out a story of dispossession in the ordinary sense of the term. His case was that the lands were unfit for actual possession and that as soon as they became fit for cultivation they were seized by the predecessor of the appellants. He did not allege any actual acts of possession by his own predecessor but based his claim to possession on the doctrine that possession must follow title when the land is incapable of being possessed in any way. There is therefore nothing in this point. It remains to consider whether the suit is barred under Section 149, Partition Act. The principles which apply are clearly laid down in the case reported in Matangini Ghose v. Mon Mohini Ghose 1928 Cal 41. In the present case the plaintiff's estate was not subject to partition at all; the estate of the defendants was under partition; but there were certain ijmali chaks which were held jointly between their estate and the plaintiff's estate. It was therefore necessary for the partition officer to take action under Section 112 and allot a certain portion of the joint lands to the estate which was being partitioned. The lands which are the subject matter of this suit were in fact allotted to the defendants. So far as the Collector is concerned, the effect of this is that instead of the whole of the ijmali chak lands being charged jointly with the revenue of both these estates the present lands are charged only with the revenue of the defendant's estate.
6. In order to see whether the present suit is barred, it is necessary to examine the case which the plaintiff makes. If his case were that these lands were included in one of the ijmali chaks and were wrongly allotted to the estate of the appellants the suit would clearly be barred, but that is not his case; on the contrary he alleges that these lands were really included in certain chaks appertaining to his own estate and were not liable to partition at all. If his contention is well founded the Deputy Collector certainly had no right to include them in the partition. No doubt, as the Secretary of State has not been made a party to the suit, any decree passed would not bind him or any future auction purchaser at a revenue sale. It would be open to them to show that these lands really were included in the ijmali chaks. But it is quite clear that so far as the plaintiff is concerned this present suit is not barred.
7. The cross-objection must fail on my finding that the suit is barred by limitation and on the merits it is concluded by the finding of fact of the lower appellate Court. The result is that this appeal must be allowed. The decrees of both the lower Courts are set aside and the suit is dismissed with costs in all the Courts. The cross-objection is dismissed without costs. Mr. Ghose asks for leave to appeal. No doubt important questions are raised in connexion with the effect of Ex. 4; but the decision is only obiter dictum in this appeal because the document was not even made a ground of the plaintiff's case in the plaint. The leave asked for is therefore refused.