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Alom Sheikh Gazi and ors. Vs. Harinath Mitra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.763
AppellantAlom Sheikh Gazi and ors.
RespondentHarinath Mitra and ors.
Excerpt:
landlord and tenant - dispossession of tenant--landlord having no hand in ouster--limitation--bengal tenancy act (viii of 1885), schedule ill, article 3, applicability of. - 1. the plaintiff's case was that the land was held by one chand gazi, who surrendered it in favour of the landlord. the landlord, it is said, granted a lease of the land in favour of the plaintiff's father-in-law and that the plaintiff himself subsequently obtained a patta from the landlord. the plaintiff says that chand gazi or his heirs were not in possession of the land, that he was in possession and that he was subsequently dispossessed in 1321 by the defendants, the heirs of chand gazi.2. the court of first instance found against the plaintiff and dismissed the suit. on appeal, the lower appellate court gave a decree to the plaintiff and the defendants have appealed to this court.3. the learned subordinate judge has found that the story of surrender has not been proved. that being.....
Judgment:

1. The plaintiff's case was that the land was held by one Chand Gazi, who surrendered it in favour of the landlord. The landlord, it is said, granted a lease of the land in favour of the plaintiff's father-in-law and that the plaintiff himself subsequently obtained a patta from the landlord. The plaintiff says that Chand Gazi or his heirs were not in possession of the land, that he was in possession and that he was subsequently dispossessed in 1321 by the defendants, the heirs of Chand Gazi.

2. The Court of first instance found against the plaintiff and dismissed the suit. On appeal, the lower Appellate Court gave a decree to the plaintiff and the defendants have appealed to this Court.

3. The learned Subordinate Judge has found that the story of surrender has not been proved. That being so, the plaintiff, in order to succeed, must show that he had acquired a title by adverse possession as the amalnama, which is said to have been granted by the landlord in 1313, was within 12 years of the suit. The learned Subordinate Judge, however, was of opinion that Chand Gazi's title as raiyat was extinguished by the special rule of limitation contained in the Bengal Tenancy Act. If that rule of limitation were applicable to the facts of the present case, the plaintiff, no doubt, would have a title derived from the landlord, after Chand Gazi's right had been extinguished under the special limitation. But all that the learned Subordinate Judge has found is that the defendants were dispossessed by the plaintiff under the authority of the landlord. That by itself is not sufficient to bring the case under Article 3, Schedule III of the Limitation Act. It is not found that the landlord had any hand in the ouster.

4. It is to be observed that the only case the plaintiff set up was that the defendants bad surrendered the land. That case, as we have seen, has been found against him by both the Courts below. If, therefore, the defendants' right was not extinguished either by surrender or by special rule of limitation, it subsisted and the amalnama or possession under it within 12 years of the suit could not confer a title on the plaintiff.

5. We think, therefore, that the decree of the lower Appellate Court must be set aside and that of the Court of first instance restored with costs of both Courts.


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