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Srimati Narainmoyi Dasi and ors. Vs. Umesh Chandra Dey and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.459
AppellantSrimati Narainmoyi Dasi and ors.; Umesh Chandra Dey and anr.
RespondentUmesh Chandra Dey and ors.;srimati Narainmoyi Dasi and ors.
Excerpt:
pleadings and proof, variance between - adverse possession, plea of acquisition of absolute title by--decree declaring acquisition of limited interest, whether can be passed. - .....learned subordinate judge has found that the defendant has acquired a limited right as tenant by adverse possession and has accordingly passed a decree affirming the plaintiffs' title and ordering the defendant to pay rent.2. the plaintiffs have appealed. this finding involves two things, namely, an affirmance of the plaintiffs' title and the finding that the defendant has not acquired an absolute title by adverse possession against the plaintiffs. the only question then is whether the court was entitled to hold that the defendant was a tenant, lie never claimed to be a tenant, his claim was to hold the land under a title of his own. this question, therefore, should never have been entertained. no case is made of the defendant's right in assertion of a limited interest as a tenant......
Judgment:

1. These two appeals which I deal with in one judgment have been argued at great length, but the point for decision is really a very short one. The learned Subordinate Judge has found that the defendant has acquired a limited right as tenant by adverse possession and has accordingly passed a decree affirming the plaintiffs' title and ordering the defendant to pay rent.

2. The plaintiffs have appealed. This finding involves two things, namely, an affirmance of the plaintiffs' title and the finding that the defendant has not acquired an absolute title by adverse possession against the plaintiffs. The only question then is whether the Court was entitled to hold that the defendant was a tenant, lie never claimed to be a tenant, His claim was to hold the land under a title of his own. This question, therefore, should never have been entertained. No case is made of the defendant's right in assertion of a limited interest as a tenant. This being excluded and the findings on title as regards the absolute adverse possession being in favour of the plaintiffs, their suit for khas possession should have been decreed.

3. We accordingly decree this suit and appeal, and reverse the judgment and. decree of the Court below with costs of all Courts.

4. As regards Appeal from Appellate Decree No. 31fc6 of 1915, we dismiss this appeal with costs.


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