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Upendra Nath Roy Vs. Jitendra Nath Kundu Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.61
AppellantUpendra Nath Roy
RespondentJitendra Nath Kundu Choudhury and ors.
Cases ReferredRadhamoni Debi v. Collector of Khulna
Excerpt:
limitation act (ix of 1908), schedule i, article 144 - time under, when begins to run--nature of defendant's possession--requirements--secret assertion, whether sufficient--overt act--registration of kobala in defendant's favour by tenant--whether constructive notice to landlord. - .....and raised rent of paran to rs. 6. paran died leaving his son gour. bijoy keshab instituted a rent suit against gour in the year 1904, obtained a decree on contest and in execution of that decree purchased the lands on november 28, 1911, and got possession of the same though court. priya nath, the father of defendants nos. 2-4 there after took settlement of the lands from bijoy keshab at a rental of rs. 7-8. on the death of priya nath, the defendants nos. 2-4 are in possession of the disputed land. bijoy keshab died leaving the plaintiffs as his heirs. the plaintiffs brought vent suit no. 339 of 1923 against the defendant nos. 2-4 which was decreed in the first court and was dismissed on appeal on september 2, 1926. in the course of that rent suit, the plaintiffs came to know for.....
Judgment:

Nasim Ali, J.

1. The respondents Nos. 1 and 2 instituted a suit in the Court of the Munsif at Howrah for declaration of their title to certain lands and for recovery of arrears of rent from the appellant. The plaintiffs' case shortly stated is as follows:

The disputed land was originally niskar land of Khetra Mohan, Manik Chandra and Nafar Chandra. One Puran Chandra held these lands as a tenant under them. Bijoy Keshab, the predecessor in interest of the plaintiffs, purchased the eight annas share of these lands, from Khetra and Manik and used to realise rent of Re. 1-4-0 in his share from Paran. Bijoy Keshab subsequently acquired 16 annas interest in the disputed land on Ashar 17, 1300, and raised rent of Paran to Rs. 6. Paran died leaving his son Gour. Bijoy Keshab instituted a rent suit against Gour in the year 1904, obtained a decree on contest and in execution of that decree purchased the lands on November 28, 1911, and got possession of the same though Court. Priya Nath, the father of defendants Nos. 2-4 there after took settlement of the lands from Bijoy Keshab at a rental of Rs. 7-8. On the death of Priya Nath, the defendants Nos. 2-4 are in possession of the disputed land. Bijoy Keshab died leaving the plaintiffs as his heirs. The plaintiffs brought vent suit No. 339 of 1923 against the defendant Nos. 2-4 which was decreed in the first Court and was dismissed on appeal on September 2, 1926. In the course of that rent suit, the plaintiffs came to know for the first time that although Gour had no niskar right in the disputed land, he transferred Me same to the defendant No. 1 alleging that the lands were niskar. The plaintiffs' Case is that defendant No. 1 has simply purchased the tenancy right of Gour, On these allegations the plaintiffs prayed for declaration of their title to the lands, and for recovery of arrears of rent from the defendant No. 1.

2. The defence of the defendant No. 1 was that the disputed land was niskar land of Paran and that the plaintiffs' suit was barred 'by limitation. The trial Court held that the plaintiff had succeeded in proving their niskar right to the disputed land but dismissed the suit on the ground that it was barred by limitation.

3. On appeal by the plaintiffs to the lower Appellate Court the learned Judge found

(1) that defendant No. 1 was never in actual possession of the land;

(2) that Priyanath was in possession of the land by actual cultivation under Gour before he sold his right to defendant No. 1;

(3) that defendant No. 1 never gave notice of his purchase or possession by realisation of rent from Priyanath or his heirs to the plaintiffs;

(4) that defendant No. 1 never publicly and notoriously asserted Priyanath's possession to be his possession and that his possession through Priyanath and his heir was secret;

(5) that plaintiffs came to know of the claim of defendant No. 1 for the first time in 1923, i. e., within 12 years from the date of the suit when the heirs of Priyanath set up defendant No. 1 as their landlord ;

(6) that defendant No. 1 never asserted his possession as possession in rent-free title to the knowledge of the plaintiffs.

4. He accordingly decreed the plaintiffs' suit.

5. Hence this second appeal by defendant No. 1.

6. The only point urged by the learned Advocate for the appellant is that plaintiffs suit is barred by limitation.

7. In order to decide this question it is necessary to determine which article of the Limitation Act applies to the case. In the first place it is urged by the learned Advocate that Article 120, i. e., the residuary article applies. Now the question is when the plaintiffs' right to sue defendant No. 1 for rent accrued. The finding of the Judge is that plaintiffs came to know of the possession and niskar claim of defendant No. 1 for the first time in 1923. In the case of Bolo v. Koklan their Lordships of the Judicial Committee of Privy Council observed:

There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

8. If the plaintiffs were not aware of defendant No. l's claim at all before 1923 it is difficult to see how their right to sue accrued before that year. The present suit was instituted in 1927. Consequently the plaintiffs' suit is not barred under Article 120. The suit is also not barred under Article 131 of the Limitation Act, as plaintiffs could not possibly demand any rent from defendant No. 1 before 1923 as they were not aware of defendant No. l's possession through defendants Nos. 2-4 and consequently there could not have been any refusal of his right to get rent from defendant No. 1. Article 139 of the Limitation Act cannot also apply as this is not a suit to recover possession from a tenant. Article 142 of the Limitation Act cannot also be invoked as it is not a suit for a recovery of possession of the property from defendant No. 1. Plaintiffs do not want to eject the defendant No. 1 on the ground that defendant No. 1 purchased the non-transferable occupancy holding of Gour without their knowledge and consent. Plaintiffs in the present suit also do not want to recover possession through the defendants Nos. 2-4 who are cultivating the land. The learned Advocate, however, placed much reliance upon Article 144. The starting point of limitation under that article is the date when the possession of the defendant becomes adverse. Now to apply this article it must be determined first what was the nature and effect of defendant's possession. This would 'depend upon the nature and extent of the rights asserted by the overt act or express declaration of the person relying on it': Ishan Chandra Mitter v. Raja Ramranjan Chakrabarty 2 CLJ 125 at p. 136. Again their Lordships of the Judicial Committee in Secretary of State for India v. Debendra Lal Khan have observed: 'As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna 27 C 943 : 27 IA 136 : 4 CWN 597 : 2 Bom. LR 592 : 7 Sar. 714 (PC.) at p. 140 Page of 27 I.A.-[Ed.] where his Lordship said that

the possession required must be adequate in-continuity, in publicity and in extent to show-that it is possession adverse to the competitor.

9. The classical requirement is that the possession should be nec vi nee clam nec precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.'

10. In view of the facts which have been found by the learned Judge and which I have already stated it is clear that the defendant No. 1 has failed to establish the elements which are necessary to constitute adverse possession. He has failed to prove that he was asserting a niskar right by any overt act or express declaration. He has also failed to show that his assertion of such right, if any, was either open or notorious. The assertion of his right, if any, was secret. The statement of niskar right in his kobala could not be an open assertion as the plaintiffs knew nothing of his kobala and in fact the finding is that plaintiffs were not aware of defendant's purchase of possession before 1923. In the events that have happened in. this case the learned Judge rightly observed that mere registration of the kobala Ex. A. in favour of the defendant No. 1 by the tenant Gour did not constitute constructive notice. As the possession of the defendant No. 1 in the case was not overt but secret, it was impossible for the plaintiffs to know what was happening. It is true that it was not necessary for the defendant No. 1 to prove actual knowledge of the plaintiffs about his possession. But he was bound to show that his possession was overt and without any attempt at concealment so that the plaintiffs against whom the time was running, if they have been vigilant, could have been aware of what was happening. The onus of proving adverse possession was upon the defendant No. 1 and he has failed to discharge that onus. If the defendant No. 1 had been actually cultivating the land, the position might have been different. The learned Judge has, however, found that the land was all along in the possession of Priyanath or his heir from before the purchase by defendant No. 1. As the possession of the defendant No. 1 in this case was secret, the assertion; of his niskar right, if any, was secret. He did not assert that right by any overt act and there had been no express declaration by him of such right. The facts and circumstances of this case do not disclose that the plaintiffs either knew or could have known, by due vigilance the assertain of niskar right by defendant No. 1. In fact from the judgment of the learned Munsif who held that plaintiffs' suit was barred by limitation, it does not appear that defendant No. 1 by any overt act asserted his rent-free title. The learned Munsif simply held that plaintiffs' knowledge of defendant's purchase and possession could be traced at least to 1912 and the plaintiffs had constructive notice of the facts. The learned Munsif could not find from the evidence in the case that defendant No. 1 openly asserted his rent-free title- In fact excepting the statement in the kobala Ex. A that the land is niskar no facts have been found from which it can be said that defendant No. 1 asserted the niskar right in such a way that plaintiffs knew or could have known the assertion of such right. I have already pointed out that the learned Judge from the evidence in the case has come to the conclusion that defendant No. 1's possession was secret and plaintiffs knew nothing of his purchase or possession before 1923. Under these circumstances I am not prepared to say that the decision of the learned Judge is wrong. The appeal is accordingly dismissed with costs.


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