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Sir Wasif Ali Meerza Khan Bahadur Nawab Bahadur of Murshidabad and anr. Vs. Amalendu Narayan Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.568
AppellantSir Wasif Ali Meerza Khan Bahadur Nawab Bahadur of Murshidabad and anr.
RespondentAmalendu Narayan Roy and ors.
Excerpt:
limitation act (ix of 1908), schedule i article 142 - suit for recovery of possession--admission of dispossession by defendant. - .....rent against defendants nos. 3 to 72 with regard to a half share of the disputed lands. in that suit the plaintiffs were joined as defendants and the plaintiffs raised objections to the right of the defendant no. 1 to recover rent with regard to that share. that suit was decreed in favour of defendant no. 1. in this state of facts the defendant denied the title of the plaintiffs to the lands in suit on several grounds. the suit was decreed by the trial court. on appeal by the defendants nos. 1 and 2 the judgment of the trial court was affirmed by the learned district judge.2. three points have been taken on appeal before us by defendants nos. 1 and 2.3. the first question is one of limitation. it is urged that the proper article to apply to this suit was article 120 of the first 8ch......
Judgment:

B.B. Ghose, J.

1. This appeal is by defendants Nos. 1 and 2 and it arises out of a suit for recovery of possession of about 50 biqhas of land situate within Salu Mouza. This mouza appertains to two towzis, No. 253 appertaining to defendant No 1's estate and No. 254 appertaining to the plaintiffs' estate. The facts found are that these lands were included within a mourasi tenure belonging to a lady named Muktakeshi from whom the plaintiffs had acquired their mourasi interest. The two towzis were subject to different an Survey and Settlement proceedings. There was a Record of Eights with regard to the defendant No. 1's estate. The record was finally published with regard to that estate in 1908 In that Record of Eights the disputed lands were recorded m belonging to the estate of defendant No. 1 and as being in possession of two sets of tenants--defendant No 2 with regard to a half share and defendants Nos. 3 to 72 with regard to the other half share In 1914 partition proceedings were instituted under the Estates Partition Act and there was a solenamah between the plaintiffs and defendant No. 1 under which, the defendant No. 1 alleged these lands were assigned to his share but this has been found against him. There was another Record of Rights in the year 1916 to 1917 and in that Record of Rights defendant No. 1 was recorded as the owner of the disputed land and the plaintiffs were recorded as tenants as regards of the lands. It was urged on behalf of defendant No. 1 that in 1918 defendant No. 1 brought a suit for rent against defendants Nos. 3 to 72 with regard to a half share of the disputed lands. In that suit the plaintiffs were joined as defendants and the plaintiffs raised objections to the right of the defendant No. 1 to recover rent with regard to that share. That suit was decreed in favour of defendant No. 1. In this state of facts the defendant denied the title of the plaintiffs to the lands in suit on several grounds. The suit was decreed by the trial Court. On appeal by the defendants Nos. 1 and 2 the judgment of the trial Court was affirmed by the learned District Judge.

2. Three points have been taken on appeal before us by defendants Nos. 1 and 2.

3. The first question is one of limitation. It is urged that the proper Article to apply to this suit was Article 120 of the First 8ch. of the Limitation Act and not Article 142 as the learned District Judge has done. The argument is that although the plaintiffs plead dispossession of the disputed property by the defendants and seek for recovery of possession, they were not entitled to plead dispossession on the facts alleged, namely, that defendant No. 1 had recovered rent from the tenants on the lands to the exclusion of the plaintiffs. It is urged that this act of the defendant of intercepting the rent realizable by the plaintiffs did not amount to dispossession. Under certain circumstances such an act on the part of a wrongdoer may possibly not. Amount to a dispossession of a plaintiff from the immoveable property in the occupation of a tenant. But, in this case the plaintiffs alleged that this act was done by dispossession of the plaintiffs' previous possession. The defendants also alleged that this was dispossession but the act of dispossession took place more than 12 years before the suit. Under such circumstances there cannot possibly be any doubt that Article 142 of the Limitation Act has been correctly applied to the suit. On the finding that the dispossession was within 12 years of the suit the plea of limitation must fail.

4. After disposing of two more minor points His Lordship concluded:

5. The appeal must, therefore, fail and is dismissed with coats.

Cuming, J.

6. I agree.


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