LAWS(CAL)-1955-5-32

RAGHUPATI ROY Vs. DEBU KARMAKAR

Decided On May 12, 1955
RAGHUPATI ROY Appellant
V/S
DEBU KARMAKAR Respondents

JUDGEMENT

(1.) This appeal has been argued with great ability by the learned Advocates on both sides and as a result of their arguments the questions involved in it have been narrowed down to a very short compass.

(2.) The facts are as follows: The plaintiffs are the appellants before us. The suit out of which this appeal arises was a suit for resumption of chakran lands. The trial Court passed a decree, but the lower appellate Court set it aside on the ground that the suit was barred by limitation. It is against that decision of the lower appellate Court that the present appeal has been preferred to this Court.

(3.) I should mention that in the settlement khatian in which the lands in suit are recorded one Bam Kumar, trie father of the defendants, was recorded as dakhalikar; 'Chakran Kamar' was the entry in the next column. In the place provided for noting the rent the entry is 'nishkar'. In the year 1925 a suit was instituted by the plaintiffs for recovery of possession of the said lands. The plaint in the said suit was filed in a Court which had no jurisdiction to try it. Written statements were filed by the defendants in which besides taking the objection as to jurisdiction they denied liability of service. The defendants denied the title of the plaintiffs and their right to file a SUIT for possession and they claimed title in themselves as holding the lands in 'nishkar'. The plaint, which, as I have said, was filed in a Court which had no jurisdiction to entertain it, was returned for presentation to the proper Court, but the plaintiffs did not present it to a proper Court. In 1944, that is more than twelve years after the Institution of the said suit, the present suit has been filed by the plaintiffs lor resumption of the lands in question. Both the Courts have found that the defendants refused to render service in 1925 when the first suit was filed and they have since then been in possession. Both the Courts have negatived the plea of the plaintiffs namely that since the filing of the said suit there was a reconciliation between the parties and the defendants continued to render service thereafter. The first Court, however, decreed the suit, bat the lower appellate Court dismissed it on the ground that in view of the facts stated as above the plaintiffs' claim was barred by limitation; in other words, the view taken by the lower appellate Court was that the defendants have acquired adverse title by assertion of a hostile right and being in possession for a period of more than 12 jeers.