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Dina Nath Das Vs. Rama Nath Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.702
AppellantDina Nath Das
RespondentRama Nath Das and ors.
Cases ReferredRahmatullah v. Shamsuddin
Excerpt:
limitation act (ix of 1908), schedule i, article 120, non-applicability of, where consequential relief is asked for - limitation, running of, against person in possession affected by adverse entry in record of rights. - .....of title. but whereas the trial court held that the claim was not barred by limitation, the subordinate judge has held that the suit is barred under article 120 of the schedule to the indian limitation act, as explained in francis legge v. rambiran singh 20 a. 35 : a.w.n. (1897) 193 and akbar khan v. turaban 1 ind. cas. 557 : 31 a. 9 : 5 a.l.j. 637 : a.w.n. (1908) 252 : 4 m.l.t. 444. on the present appeal, the plaintiff has contended that the view taken by the subordinate judge upon the question of limitation is obviously erroneous. the argument in substance is that the suit is in no sense a suit for a pure declaratory decree, as he seeks a two-fold consequential relief, first, by way of confirmation of possession and, secondly, by way of a permanent injunction to restrain the.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the plaintiff in a suit for declaration of title to land, for confirmation of possession, and for the issue of a permanent injunction upon the defendants to restrain them from acts of interference with the plaintiff in the enjoyment of the disputed property. The case for the plaintiff is that he purchased the land on the 6th May 1882 from the widow of one Golak Prosad, and that notwithstanding his possession on the basis of this purchase, his name was not registered by the Settlement Authorities at the time of the periodical Settlements. The order in the first of these Settlements was made adversely to the plaintiff in 1898, and this was repeated in 1908. The plaintiff states that the defendants, encouraged by these entries, have raised obstacles to his peaceful possession of the disputed property since the 28th November 1907; he was consequently driven to institute this suit on the 4th April 1910. The defendants pleaded, first, that the vendor of the plaintiff had no interest in the property, as her husband had predeceased her father-in-law, and, secondly, that the claim was barred by limitation. The Courts below have concurrently found in favour of the plaintiff upon the question of title. But whereas the Trial Court held that the claim was not barred by limitation, the Subordinate Judge has held that the suit is barred under Article 120 of the Schedule to the Indian Limitation Act, as explained in Francis Legge v. Rambiran Singh 20 A. 35 : A.W.N. (1897) 193 and Akbar Khan v. Turaban 1 Ind. Cas. 557 : 31 A. 9 : 5 A.L.J. 637 : A.W.N. (1908) 252 : 4 M.L.T. 444. On the present appeal, the plaintiff has contended that the view taken by the Subordinate Judge upon the question of limitation is obviously erroneous. The argument in substance is that the suit is in no sense a suit for a pure declaratory decree, as he seeks a two-fold consequential relief, first, by way of confirmation of possession and, secondly, by way of a permanent injunction to restrain the defendants from unlawfully interfering with his possession. In our opinion, the decree of the Subordinate Judge cannot possibly be supported.

2. It need not be disputed, as ruled in the two cases mentioned by the Subordinate Judge and also in the decisions of this Court in the cases of Mohabharat Shaha v. Abdul Hamid Khan 1 C.L.J. 73 and Shyarnanand Pas v. Raj Narain Das 4 C.L.J. 568, that Article 120 of the Schedule to the Indian Limitation Act is applicable to suits for declaratory reliefs. But the present suit is not of that character, as a prayer for injunction is a prayer for consequential relief quite as much as a prayer for confirmation of possession: Umatul Batul v. Nauji Kuar 6 C.L.J. 427 : 11 C.W.N. 705, Jhuman Karti v. Debu Lal Singh 16 Ind. Cas. 898 : 22 C.L.J. 415. Assume, however, that this is a suit for declaratory relief. The entries in the Record of Rights did not affect the possession of the plaintiff, though they might have been used in evidence against him in a possible suit for declaration of title. But the plaintiff was entitled to wait till the defendants had, on the strength of the entry in the Record of Rights, attempted to disturb his possession. This is clear from the decision in the case of Sheopher Singh v. Deo Narain Singh 17 Ind. Cas. 675 : 10 A.C.J. 413, where it was pointed out that unless an actual claim was made upon the strength of the entry in the Record of Rights, time did not begin to run against the plaintiff: Rahmatullah v. Shamsuddin 21 Ind. Cas. 609 : 11 A.L.J. 877. In our opinion, even if Article 120 be made applicable to this case, the suit has been instituted within six years after the cause of action arose. In this view the decree of the Subordinate Judge cannot be supported. It is needless to remand the case for a finding upon the question of possession, as the Trial Court expressly held that the plaintiff was not out of possession and this finding does not appear to have been assailed before the Subordinate Judge.

3. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. This order will carry costs both here and in the Court of Appeal below.


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