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Chandrodaya Bhattacharjee Vs. Srimati Chandrakala and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.751
AppellantChandrodaya Bhattacharjee
RespondentSrimati Chandrakala and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 144 - adverse possession--trespassers, independent, whether can tack on periods of possession--plaintiff never in possession--limitation. - .....suit is barred by limitation. the facts found are that this property originally belonged to one gour chandra shaha, that gour chandra sold the property to the plaintiff in the year 1308, but that possession was never made over by gour chandra to the plaintiff and that gour chandra died being in possession of the same. the defendants are not legally related to gour charan, the defendant no. 1 was the mistress of gour charan and according to the plaintiff's story she was living in the house owing to the position she occupied with reference to gour charan. in her written statement she seems to have suggested that gour charan was living in the house owing to the position he held with reference to herself and that the house was hers and that gour charan only happened to be in the house by.....
Judgment:

1. This appeal is preferred by the plaintiff against a decision of the learned Officiating Additional District Judge of Tipperah, dated the 4th April 1917, affirming a decision of the Second Munsif of Nabinagar. The plaintiff sued to recover possession of certain property consisting of a homestead and a certain grass land. The plaintiff has failed in the lower Appellate Court on the ground that the suit is barred by limitation. The facts found are that this property originally belonged to one Gour Chandra Shaha, that Gour Chandra sold the property to the plaintiff in the year 1308, but that possession was never made over by Gour Chandra to the plaintiff and that Gour Chandra died being in possession of the same. The defendants are not legally related to Gour Charan, The defendant No. 1 was the mistress of Gour Charan and according to the plaintiff's story she was living in the house owing to the position she occupied with reference to Gour Charan. In her written statement she seems to have suggested that Gour Charan was living in the house owing to the position he held with reference to herself and that the house was hers and that Gour Charan only happened to be in the house by reason of this irregular relationship that subsisted between the defendant No. 1 and Gour Charan. The second defendant holds a dual position, being the daughter of the first defendant and the mistress of the third defendant. The third defendant of course hold's the position of being the paramour of defendant No. 2. Their case has been disbelieved and the property has no doubt been found to have belonged to Gour Charan. So far as I can see there cannot be any doubt that this property was sold by Gour Charan to the plaintiff. That means that the plaintiff's title was found, but what the learned Judge has held is that the suit is barred by limitation.

2. As regards the property called the grassy portion of the land, it is quite clear that the plaintiff cannot succeed. The findings of fact show that he was in possession but was dispossessed and that this dispossession took place more than 12 years prior to the institution of the suit. That is fatal to the plaintiff's suit and this portion of the judgment of the learned Additional District Judge must be upheld. The other portion relating to the homestead land stands on a totally different footing, because the finding is that the plaintiff was never in possession of this property and, therefore, the question of limitation is Governed by Article 144, whether the possession of the defendants has become adverse to that of the plaintiff or not. Now as already mentioned, the plaintiff purchased it in the year 1305 and Gour Charan continued in possession of the homestead from that date down to 1316. It may be taken that the possession of Gour Charan was adverse to the plaintiff, but the defendant No. 1 as his mistress or defendant No. 2 as daughter or defendant No. 3 as paramour of the daughter are not entitled to add on the period during which Gour Charan was in possession adversely to the plaintiff. It is quite clear that they were not in adverse possession to the plaintiff for anything like 12 years. It was something like four years. In that view, the plaintiff is entitled to succeed and recover possession of the homestead.

3. We, therefore, set aside that portion of the judgment of the learned District Judge in so far as it dismisses the plaintiff's suit with regard to the homestead and in lieu thereof make an order directing the plaintiff to be put in possession thereof by evicting the defendants therefrom. We make no order as to costs.


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