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Srimati Nagendra Bala Choudhurani Vs. Hon'ble Sir Bejoy Chand Mahatap Bahadur Maharaja Dhiraj of Burdwan and Anr. (19.02.1923 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in74Ind.Cas.153
AppellantSrimati Nagendra Bala Choudhurani
RespondentHon'ble Sir Bejoy Chand Mahatap Bahadur Maharaja Dhiraj of Burdwan and Anr.
Cases ReferredRamgopal Mandal v. Kumar Kamala Ranjan Roy
Excerpt:
limitation act (ix of 1908), schedule i, article 144 - chaukidari chakran lands--suit by pntnidar--adverse possession--limitation, commencement of. - .....judge held that the defendant zemindar had not succeeded in establishing that he had held the lands adversely to the plaintiff for more than 12 years before the institution of these suits on the ground that the zemindar had not, within a period of over 12 years prior to suit, taken direct possession of the lands after the resumption thereof under the choukidari act and the settlement of the same with him by the collector, the learned district judge was of opinion that time ran against the putnidar from the date of the settlement of the lands by government with the zemindar.3. on behalf of the plaintiff-appellant it has been argued before us that, having regard to the decisions of their lordships of the judicial committee of the privy council in the cases of ranjit singh v. kali dasi.....
Judgment:

1. These three appeals arise out of three suits for recovery of possession of certain chaukidari chakran lands after establishment of the plaintiff's title thereto. It is alleged that the putni mehal, known as Lot Udaynarainpore was originally held by one Ram Narayan Mookerjee under the Ziminiar, the Maharajadhiraj of Burdwan, and that the plaintiff Srmati Nagendra Bala Choudhurani purchased on the 8th April 1905 the paint tenure in respect of the said Lot Udaynarainpore comprising 13 Mouzahs at a sale held by a Receiver appointed by this Court on its Original Side in a suit for partition of certain plaint properties among the representatives of the said Ram Narayan Mookerjee, and that thereafter the plaintiff tried to obtain possession of certain chaukidari chakran lands comprised in the said Mouzahs which had been resumed by the Government under() Bengal Act VI of 1870 aid which had beets settled during the years 1896 to 1899 with the Zemindar, the Maharajadhiraj of Burdwan. The main defence of the Zemindar was that the suits were barred by limitation. As regards the defendant Provash Chundra Chatterjee, who was made party in one of the said three suits and who, it appeared, had taken settlement of some of the said lands from the Maharajadhiraj of Burdwan, it was alleged on the latter's behalf that he was merely the benamidar of the plaintiff Nagendra Bala Choudhurani. The three suits referred to above were Suits Nos. 29, 30 and 54 of 1916. Suit No. 29, in which Provash Chundra Chatterjee was a defendant, related to the lands of six Mouzahs comprised in the said Putni and the two other suits related to the lands of three other Mouzahs. The learned Sub-Judge decided the question of limitation in favour of the plaintiff and the question of benami in favour of the defendant Maharajadhiraj of Burdwan. Accordingly, on those finding's, the Subordinate Judge gave a decree to the plaintiff in all the three suits declaring her title to the said choukidari chakran lands and directing that she should get khas possession of the same except the lands settled with Provash Chundra Chatterjee who was found to be the benamidar of the plaintiff.

2. As regards the question of limitation, the learned District Judge, agreeing with the learned Subordinate Judge, held that Article 144 of the Second Schedule of the limitation Act was the Article applicable in the circumstances of these cases, but while the Subordinate Judge held that the defendant Zemindar had not succeeded in establishing that he had held the lands adversely to the plaintiff for more than 12 years before the institution of these suits on the ground that the Zemindar had not, within a period of over 12 years prior to suit, taken direct possession of the lands after the resumption thereof under the Choukidari Act and the settlement of the same with him by the Collector, the learned District Judge was of opinion that time ran against the putnidar from the date of the settlement of the lands by Government with the Zemindar.

3. On behalf of the plaintiff-appellant it has been argued before us that, having regard to the decisions of their Lordships of the Judicial Committee of the Privy Council in the cases of Ranjit Singh v. Kali Dasi Debi 40 Ind. Cas. 981 : 44 C. 841 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 25 C.L.J. 499 : 19 Bom. L.R. 462 : (1917) M.W.N. 459 : 6 L.W. 101 : 2 P.L.W. 1 : 22 M.L.T. 489 : 44 I.A. 17 (P.C.) and Ranjit Singh v. Maharaj Bahadur Singh 48 Ind. Cas. 262 : 46 C. 173 : 29 C.L.J. 193 : 16 A.L.J. 964 : 35 M.L.J. 728 : 23 C.W.N. 198 25 M.L.T. 8 : 1 U.P.L.R. (P.C.) 23 : 21 Bom. L.R 506 : 10 L.W. 83 : 45 I.A. 162 (P.C.), there can arise no question now as to the right of the plaintiff to the lands in question, nor can the recovery of possession of these lands by her be barred unless for more than 12 years prior to the dates of the institution of these suits, the possession of the Zemindar had become adverse to the plaintiff. This argument is, no doubt, correct the real question is to ascertain when the possession of the Zemindar in a case like this became adverse to the plaintiff. Does the possession of the Zemindar become adverse to the putnidar at the moment the lands are settled with the Zemindar by the Government without more or does the possession of the Zemindar become adverse only at the moment when some act is done by him indicative of a hostile attitude on his part towards the putnidar?

4. No doubt it has been held in the case of Ramgopal Mandal v. Kumar Kamala Ranjan Roy 53 Ind. Cas. 955 : 30 C.L.J. 522 that in cases of this description, time runs against the Putnidar from the date of the settlement of the lands with the Zemindar by the Government. That decision may be reconcilable with the facts of that case and with tae pleadings therein; we think, however, having regard to the language of Article 144 of the First Schedule of the Limitation Act, that in each case the Court must ascertain on the facts on record when the possession of the defendant, who is usually the Zeminiar, became adverse to the plaintiff. The possession of the Zemindar may become adverse to the putnidar in a variety of ways, e.g. when the lands are settled by the Zemindar with tenants or when the putnidar after being invited to come and take the lands does nothing and the Zemindar thereafter makes other arrangements either for holding the lands in khas or for settling the same with ijaradars or the like. In each case, the facts, in our opinion, have got to be investigated having regard to the language of Article 144 of the Limitation Act. In the cases before us, there is no finding by the lower Appellate Court as to when on the facts in these cases the possession of the Zemindar became adverse to the plaintiff and we are, therefore, of opinion that the matter should go back to the lower Appellate Court for clear and specific findings on that point in the cases out of which these Appeals from Appellate Decrees Nos. 1032,1137 and 1138 have arisen in respect of all the lands other than the lands settled with Provash Chundra Chatterjee. Either party may adduce further evidence upon the question of possession and such evidence may be taken by the lower Appellate Court itself or under its direction by the Court of first instance. Costs of the Appeals Nos. 1032, 1137 and 1138 will abide by the decision of the lower Appellate Court on the point indicated above.


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