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Ambika Charan Chakravarti and anr. Vs. Sarat Chandra Basu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.913
AppellantAmbika Charan Chakravarti and anr.
RespondentSarat Chandra Basu and ors.
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1 - withdrawal of suit, leave for--judgment, statement in, concerning point not raised, desirability of. - .....point is that, if the plaintiffs think fit to attempt to enforce in any subsequent proceeding this right of occupancy which was left open by the primary court, they will bs seriously prejudiced by the statement made by the learned judga of the lower appellate court that, if that question had been before the court, the learned judge would have held that the plaintiffs' claim was barred by limitation. i think that this 'contention is sound. the plaintiffs, whether their rights are well founded or not on that claim, ought not to be prejudiced by a statement in this suit that, if that case had been before the court, the judge would have decided it against them on the ground of limitation. that would depend on a variety of circumstances. it is not necessary for us to express any opinion one.....
Judgment:

Fletcher, J.

1. This appeal is preferred by the plaintiffs against the decision of the learned Subordinate Judge of Dacca affirming the decision of the Munsif at Manickganj. The suit was brought to recover a jote on the footing that it was a kaemi jote. The defendant No. 1 who is the landlord of l-6th of the jote opposed the plaintiffs'claim. He denied that the' plaintiffs had a Jcaemi interest and be stated that their predecessor had a temporary ordinary occupancy raiyati jote. The first Court held that the jote was not Tcaemi and left the question as to whether the plaintiffs had an occupancy right by recognition open. The lower Appellate Court agreed with the primary Court and stated that the question of oooupaney right was not before the Court and then proceeded to state that, if it had been before the Court, the plaintiffs' suit was barred by limitation. Only two questions are urged in this appeal. First of all, that the plaintiffs should have liberty to withdraw the whole suit. That clearly cannot be assented to The Second point is that, if the plaintiffs think fit to attempt to enforce in any subsequent proceeding this right of occupancy which was left open by the primary Court, they will bs seriously prejudiced by the statement made by the learned Judga of the lower Appellate Court that, if that question had been before the Court, the learned Judge would have held that the plaintiffs' claim was barred by limitation. I think that this 'contention is sound. The plaintiffs, whether their rights are well founded or not on that claim, ought not to be prejudiced by a statement in this suit that, if that case had been before the Court, the Judge would have decided it against them on the ground of limitation. That would depend on a variety of circumstances. It is not necessary for us to express any opinion one way or the other. That question of limitation just as much as the question of the right of occupancy by recognition will be left open between the parties. The present appeal fails and must be dismissed with costs.

2. Shamsul Huda, J.--I agree.


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