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Mahamed Ayub Chowdhury Vs. Elahi Baksh Mandal and Fakirullah Mean - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.258
AppellantMahamed Ayub Chowdhury
RespondentElahi Baksh Mandal and Fakirullah Mean
Cases ReferredHanuman Karnat v. Hanuman Mandur
Excerpt:
limitation act (ix of 1908), schedule i, articles 62, 97 - lease--lessee not given possession of portion of land demised--refund of premium, suit for--limitation. - .....of the premium is barred by limitation. it appears that the land in suit is only a portion of the land leased, the plaintiff having obtained possession of the remainder. in our opinion, the facts of this case are indistinguishable from those of the case of ardesir v. vajesing 25 b. 593 : 3 bom.l.r. 190. in that case it was held that the principle enunciated in the judgment of the judicial committee of the privy council in hanuman karnat v. hanuman mandur 19 c. 123 : 18 i.a. 158 : 6 sar.p.c.j. 91 : 9 ind. dec. (n.s. ) 527 (p.c.) was applicable and that the case was governed by article 62 of the limitation act. even taking, the view most favourable to the appellant and holding that article 97 applies to this case, in our opinion, it will still be barred, for it is found that the plaintiff.....
Judgment:

1. The plaintiff brought the suit to recover possession of certain land on the basis of a lease granted to him by the 2nd defendant on 2nd Sravan 1316 B. S., corresponding to 18th July 1909; in the alternative, be asked for a return of the premium paid to the defendant No. 2, when the lease was granted. The first defendant, who was in possession of the land, pleaded that he was in possession under a Kabuliyat executed by him and accepted by the defendant No. 2 on 30th May 1909, The lower Courts have found that this Kabuliyat was duly executed and accepted by the lessor and that the plaintiff's title is not valid as against defendant No. 1. As regards his claim against defendant No. 2, it has been held by both-the Courts to be barred by limitation. At the commencement of the hearing of this appeal, the learned Pleader for the plaintiff-appellant admitted that, on the findings of fact, he could not ask for a reversal of the dismissal of the suit as against the defendant No. 1. The only point is whether the suit as against the defendant No. 2 for the return of a proportionate part of the premium is barred by limitation. It appears that the land in suit is only a portion of the land leased, the plaintiff having obtained possession of the remainder. In our opinion, the facts of this case are indistinguishable from those of the case of Ardesir v. Vajesing 25 B. 593 : 3 Bom.L.R. 190. In that case it was held that the principle enunciated in the judgment of the Judicial Committee of the Privy Council in Hanuman Karnat v. Hanuman Mandur 19 C. 123 : 18 I.A. 158 : 6 Sar.P.C.J. 91 : 9 Ind. Dec. (N.S. ) 527 (P.C.) was applicable and that the case was governed by Article 62 of the Limitation Act. Even taking, the view most favourable to the appellant and holding that Article 97 applies to this case, in our opinion, it will still be barred, for it is found that the plaintiff failed to get possession and became aware of the previous lease to defendant No. 1 in Sravan 1317 B. S. This was more than three years before the date of the institution of the suit; and in any point of view, the cause of action cannot be fixedd at a later data. For these reasons we dismiss the appeal as against both the 1st and the 2nd defendants. Each defendant-respondent will get separate costs from the appellant in this Court.


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