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Kali Debya Vs. Bhagaban Nanda - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.810
AppellantKali Debya
RespondentBhagaban Nanda
Cases ReferredChowdhury Shamanund Das v. Rajnarain Das
Excerpt:
limitation act (xv of 1877), schedule ii, article 120 - suit for declaration of title--order refusing registration of name, not dispossession. - .....as the owner, that this circumstance has thrown a cloud on her title and that, therefore, she is entitled to have her title declared in the property, of which she alleges she is in possession.2. the court of first instance held with reference to the plea of limitation raised by the defendant that the suit was in time as it had been brought within 12 years from the date of the publication of the record of right. upon the merits the court of first instance found that the plaintiff had established her case. in this view a decree was made in favour of the plaintiff.3. upon appeal the learned district judge held that as the suit was one for declaration of title to immovable property of which the plaintiff was admittedly in possession it ought to have been instituted within six years from.....
Judgment:

Mookerji, J.

1. This is an appeal on behalf of the plaintiff in an action for declaration of title to immovable property. The plaintiff commenced this action on the 28th September, 1905, upon the allegation that she obtained this property by inheritance upon the death of her son, that the defendant has got himself registered in the collectorate, that in the record of right which was published on the 15th August 1897, the defendant was entered as the owner, that this circumstance has thrown a cloud on her title and that, therefore, she is entitled to have her title declared in the property, of which she alleges she is in possession.

2. The Court of first instance held with reference to the plea of limitation raised by the defendant that the suit was in time as it had been brought within 12 years from the date of the publication of the record of right. Upon the merits the Court of first instance found that the plaintiff had established her case. In this view a decree was made in favour of the plaintiff.

3. Upon appeal the learned District Judge held that as the suit was one for declaration of title to immovable property of which the plaintiff was admittedly in possession it ought to have been instituted within six years from the date when the right to sue accrued, that is, from the 15th August 1897. In this view of the matter the District Judge dismissed the suit.

4. The plaintiff has now appealed to this Court and on her behalf it is contended that the suit is not barred by limitation, Now it is quite clear that as laid down in the case of Mahabharat Shaha v. Abdul Hamid Khan 1 C.L.J. 73, that Article 120 of the second schedule of the Limitation Act applies to a suit for declaration of title to immovable property. It is also clear as laid down in Chowdhury Shamanund Das v. Rajnarain Das 11 C.W.N. 186. that an order under the Land Registration Act refusing to register an applicant's name does not in law amount to a dispossession of the applicant and delivery of possession to the party upon whose objection the application was refused. When, therefore, the party whose application for registration of name is refused continues in possession, on suit for recovery of possession lies at his instance and a suit to have his title to the land declared is governed by Article 120 of the Limitation Act. The District Judge was, therefore, quite correct in holding that Article 120 was applicable to this case. It is suggested, however, that in the plaint an allegation had been made that the plaintiff became aware of the proceedings before the Revenue authorities which had thrown a cloud upon her title so late as the 19th January 1904, and as she had been kept out of the knowledge of her right to maintain this action by reason of the fraud of the defendant, she was entitled to the benefit of Section 18 of the Limitation Act. No doubt if the fraud alleged was established, the plaintiff would be entitled to bring her suit within six years from the date when she became aware of the fraud. The learned Vakil for the respondent, however, has pointed out that the fraud alleged in the plaint was not attempted to be proved and that although the plaintiff was examined as a witness she did not allege that there was any fraud on the part of the defendant or that she became aware of her right to maintain the present suit on the 19th January 1904. Whatever, therefore, the effect of any possible application of Section 18 to the present case might have been if evidence had been given in support of the alleged fraud, it is quite clear upon the record as it stands that the plaintiff cannot succeed. The suit is clearly barred by limitation and the appeal is, therefore, dismissed with costs.


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