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Uday Mandal and ors. Vs. Ram Durlabh Sarkar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.707
AppellantUday Mandal and ors.
RespondentRam Durlabh Sarkar
Excerpt:
limitation act (ix of 1908), schedule i, article 142 - suit for possession of land--plaintiff not in possession within 12 years of suit--defendant, whether bound to prove 12 years' adverse possession. - .....of his title to five bighas of land. he said he had a share in the mouzah diktosh and that the land in suit is part of that village, on the other hand the defendants said that the land belonged to shyampore. they also pleaded that they had been in possession for more than twelve years and the plaintiff's suit is barred by limitation. several other points were raised in the case but i do not propose to enter into them.2. the first court found that the defendants had proved their possession for long over 12 years and also that the land did not lie in the village diktosh and that the plaintiff bad never had possession.3. the plaintiff then preferred an appeal, and the learned judge on appeal held that a portion of the land did lie within the village diktosh. he then proceeded to deal.....
Judgment:

Walmsley, J.

1. This appeal is preferred by defendants. In the suit from which it arises the plaintiff sought to recover possession on a declaration of his title to five bighas of land. He said he had a share in the Mouzah Diktosh and that the land in suit is part of that village, On the other hand the defendants said that the land belonged to Shyampore. They also pleaded that they had been in possession for more than twelve years and the plaintiff's suit is barred by limitation. Several other points were raised in the case but I do not propose to enter into them.

2. The first Court found that the defendants had proved their possession for long over 12 years and also that the land did not lie in the village Diktosh and that the plaintiff bad never had possession.

3. The plaintiff then preferred an appeal, and the learned Judge on appeal held that a portion of the land did lie within the village Diktosh. He then proceeded to deal with the point of limitation, and he found that he was in agreement with the Munsif in holding that the evidence which the plaintiff adduced to prove his possession of the land was not at all reliable. But he continues that that fact alone was not sufficient unless the defendants could show that they had held the land adversely for more than 12 years before the institution of the suit. And he concluded that the defendants had not succeeded in proving that.

4. It is urged on behalf of the appellants that the case is governed by Article 142 of the Limitation Act and that the plaintiffs had not proved that they had ever exercised possession within twelve years before the suit. It is conceded on behalf of the respondent that that Article is applicable. On the judgment as it is recorded by the Judge it is clear that there is no finding of fact which would make the suit within time under that Article, but the learned Vakil for the respondent urges that what the learned Judge means is this, that the plaintiff has proved his title to the land, that the land was uncultivated land and not in occupation of any person and that it is a case in which possession should be presumed to follow title, and that unless the Judge found that the defendants had proved twelve years' adverse possession, the inference is that the plaintiff's presumptive possession was invaded at some point within 12 years before the suit. I can find, however, no trace in the Judge's judgment of anything to show that this was the manner in which he approached the question of limitation and when we look at the pleadings and the findings of the Courts below as to the nature of the land, there seems to be nothing to warrant the view that it was not land capable of ordinary occupation or cultivation. That being so the explanation offered on behalf of the respondent is inadequate and on the findings of fact it appears to me that the suit is barred by limitation.

5. I think, therefore, the appeal must be decreed with costs in this Court and the suit dismissed with costs in both the lower Courts.

Greaves, J.

6. I agree.


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