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Amulya Charan Das Vs. Baijuntha Nath Datta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.376
AppellantAmulya Charan Das
RespondentBaijuntha Nath Datta and ors.
Cases ReferredSailaja Gupta v. Ram Gopal Dey
Excerpt:
bengal landlord and tenant procedure act (viii of 1869), section 27 - plaintiffs suit for possession on ground that he has jots rights--existence of such right not denied but that such right has been abandoned when defendant took possession--section 27, if applies. - .....he instituted the suit. in the plaint, however, he made a prayer for declaration of his jote right in the land in suit. defendant no. 1 filed a written statement in which he did not deny the jote of prosonna; in fact he admitted that the lands in suit appertained to the holding which prosanna held under him. he did not state that kadambini was not prosanna's widow, or that atul was not the reversioner of prosanna or that plaintiff was not the son of atul. his material defence was that he had not illegally taken possession of the lands, in suit and that the suit was barred by limitation. paragraphs 8 and 16 of the written statement contain his substantial defence which is that at the time when he took possession the said jote was not subsisting, it having been abandoned on.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the plaintiff and arises out of a suit for recovery of possession. The plaintiff came to Court on the allegation that the lands in suit form the jote of one Prosonna Kumar Biswas, on whose death in 1324 they devolved upon his widow, Kadambini, and on the death of the latter in 1329 they devolved upon Prosonna's sister's, son, Atul, as his reversioner. The plaintiff is the son of Atul who died sometime in 1333. The plaintiff's case, therefore, is that he has jute right in the lands in suit and that he was forcibly and illegally dispossessed by defendants Nos. 1 and 2, his landlords. On these allegations he instituted the suit. In the plaint, however, he made a prayer for declaration of his jote right in the land in suit. Defendant No. 1 filed a written statement in which he did not deny the jote of Prosonna; in fact he admitted that the lands in suit appertained to the holding which Prosanna held under him. He did not state that Kadambini was not Prosanna's widow, or that Atul was not the reversioner of Prosanna or that plaintiff was not the son of Atul. His material defence was that he had not illegally taken possession of the lands, in suit and that the suit was barred by limitation. Paragraphs 8 and 16 of the written statement contain his substantial defence which is that at the time when he took possession the said jote was not subsisting, it having been abandoned on Prosanna's death. Admittedly the defendants Nos. 1 and 2 took possession more than one year before the suit.

2. The Munsif held that the holding was not abandoned, and that the suit was not barred by limitation. On the last mentioned point he held that as defendant No. 1 did not acknowledge the plaintiff's father as his tenant, the special limitation of one year mentioned in a. 27 of Act VIII of 1869 (B.C.) was not applicable.

3. On appeal the learned Subordinate Judge has held that Section 27 of Act V7JI of 1869 applied and the suit is barred by limitation. He also observed that if it had been necessary, he would have held that the holding had been abandoned but as he dismissed the suit on the ground of limitation, he did not examine the evidence on the question of abandonment from all aspects. The vital question in this appeal is whether the Subordinate Judge's judgment on the question of limitation is right. In my judgment it is. The material part of Section 27 runs as follows:

All suits to recover the occupancy of any land, farm or tenure from which a ryot, farmer or tenant has been illegally ejected by the person entitled to receive rent for the same shall be commenced within the period of one year from the date of the accruing of the cause of action, and not afterwards.

4. To a suit which comes within the purview of Section 27, the defence can be either that the landlord has not taken possession or that possession was lawfully taken.

5. It has been held that when in order to succeed the plaintiff has to establish his title, the suit would not be governed by Section 27 of Act VIII of 1869 but by the general law of limitation, i.e. Article 142 of the Indian Limitation Act. In the case of Tamirzuddin v. Ashrab Ali 31 C. 647 : 8 C.W.N. 446(F.B.), where the question of limitation for a suit instituted by a non-occupancy raiyat to recover possession from his landlord was raised, Ghose, J. observed that suit contemplated by Section 27 of Act VIII of 1869 is a possessory action against the landlord and the limitation of one year does not apply to a suit where title is set up and possession is asked in pursuance thereof. The true scope of Section 27 of the said Act was not direct in question in that case but the matter was considered only to repel the contention. of the landlord that where the tenant was dispossessed his only remedy was to institute a suit under Section 9 of the Specific Relief Act, the limitation for which is six months. In the earlier case of Imam Buksh v. Moni Mondal 9 C. 280 , where the applicability of Section 27 of Act VILI was directly in question. Garth, C.J. pointed out where the plaintiff's suit was for recovery of his jote and the defendant said 'that he had lawfully taken possession, the jote right being relinquished before the date he took possession, the suit comes within Section 27 of Act VIII, and the plaintiff cannot make it other than a suit for possession:

by inserting in his plaint that he desires to have his title established. If this were enough to take the case out of the operation of the section a plaintiff might always get rid of the one year's limitation by inserting a claim of right in his plaint.

6. In my judgment the scope of the suit must be determined on a broad basis. If in substance it is a suit for possession and title need not be proved to get at the relief the suit would come within the section and an insertion of a prayer for declaration of title would be immaterial. To find out the true scope of the suit, therefore, the case of the parties must be looked into. If the defendant had not at any time denied the existence of the jote claimed by the plaintiff or the plaintiff's right to get it if it then subsisted but claimed to hold possession on the ground that he had rightfully gone into possession, the jote being not subsisting at the time he took possession, on the ground that it had been surrendered, relinquished or abandoned, Section 27 would apply. This is the principle laid down by Wilson and Ghose, J.J., in Sreenath Bhattacharji v. Ram Ratan De 12 C. 606. It may be noticed that Wilson, J. was a party to the judgment in the case of Joyunti Dass v. Mohammad Ali Khan 9 C. 423, where it was held that Section 27 did not apply. From the facts as reported it can be gathered that in Joyunti Dass's case 9 C. 423, the defendant had denied that there was ever a jote as claimed whereas in Sreenath Bhatacharjee's case 12 C. 606, the existence of the jote was not denied but the plea was that at the material point of time it had ceased to exist having been relinquished, and consequently there was no illegal eviction within the meaning of Section 27. In the case of Basarut Ali v. Altaf Hossain 14 C. 624, the tenant sued for possession of 10 bighas of land maintaining that the whole area appertained to his jote. The landlord defendant admitted his jote right to only 3 bighas 19 cottas and denied his title to the rest. It was held that the section did not apply. The case of Gobinda Chandra Chakrabarti v. Prakash Nath 91 Ind. Cas. 677 : A.I.R. 1926 Cal. 555, is of the same type. There tenant claimed that his jote comprised two plots of land, plots A and B and the dispossessing landlord stated that plot B did never form part of the jote. It was held that the section did not apply. In the case of Sailaja Gupta v. Ram Gopal Dey 37 C.W.N. 815 : 148 Ind. Cas. 382 : A.I.R. 1933 Cal. 180 : 6 R.C. 458(2), the plaintiff's title as tenant was disputed, which I take to mean that either there was no such jote as claimed by the plaintiff at any time or that the plaintiff would have not, got, it if it had subsisted at, the time when he alleged he got it and an alternate defence also of abatement was set up. It was held that the section did not apply. All these oases are in my judgment distinguishable, because according to the cases of both the parties, it was necessary for the plaintiff to prove his title to get at the relief claimed. In the case before me Prosanna's jote is admitted, the, relationship of the plaintiff to Prosanna is not denied, and all that is said by the defendant No. 1 is that there was no illegal eviction, as possession had been given up by the tenant, he abandoning all his rights to the holding. I accordingly do dismiss the appeal with costs. Leave to appeal under the Letters Patent is refused.


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