MOHINI MOHAN DAWN Vs. SRIS CHANDRA HATI

JUDGEMENT

(1.) This second appeal is by the plaintiff whose suit was dismissed by the trial court. In the first appeal also he was unsuccessful.

(2.) The plaintiff's case, in short, is that the properties described in the schedules 'ka' and 'kha' originally appertained to a jama of Rs. 137/-. It belonged to the three brothers. Ram Chandra, Shyama Charan and Umesh. Ram Chandra and Shyama Charan died. The pro forma defendant No. 9 Nitai is the heir of Ram Chandra. Defendants Nos. 1, 2 and 3 are the sons of Shyama Charan and the pro forma defendants Nos. 5, 6, 7 and 8 are the sons of Sarat Chandra who was a predeceased son of Shyama Charan. Umesh died leaving behind his daughter-in-law Annakali, widow of a predeceased son. She is the pro forma defendant No. 4. In 1930 Umesh executed a Will in favour of the plaintiff in respect of all his properties and the plaintiff obtained Letters of Administration in respect thereof. The plaintiff is the son of Sorashi, the daughter of Umesh. The defendant No. 10 is the landlord in respect of the jama of Rs. 137/-. It has been alleged in the plaint that there was a partition as between Umesh and his brothers and on the basis of this partition Umesh got exclusive possession of the properties in 'ka' schedule but the properties in 'kha' schedule remained joint. The plaintiff has claimed 16 annas title in 'ka' schedule property and l/3rd share in 'kha' schedule property. During the lifetime of Umesh the defendant No. 10, the landlord filed a suit for rent and got a decree. During the pendency of the execution case Umesh died and after his death the plaintiff or any heir or successor of Umesh was not substituted in his place and in execution of the decree obtained by the landlord and on suppression of the processes of the court, the jama was put to auction sale. In fact, after the sale no possession of the lands were delivered to the landlord auction purchaser; neither was the possession taken by the defendant No. 10. The defendants Nos. 1 to 3 lived with defendant No. 4 who was looking after the properties on behalf of the plaintiff and all of them had been possessing the suit properties. The plaintiff asked the defendants Nos. 1 to 4 to vacate the suit land and on their refusal the present suit was filed. The defendants Nos. 1-3 and 5 and 6 filed a joint written statement. They denied the allegations of the plaintiff and their case was that the suit plots were made khas by the defendant No. 10 by virtue of a rent sale and the defendants Nos. 1 to 3 and pro forma defendant No. 9 took a fresh settlement of the lands at an annual rental of Rs. 104/-. Subsequently the defendants Nos. 1 to 3 executed a deed of gift of some of the suit properties as mentioned therein in favour of the pro forma defendants Nos. 5 to 8 and also delivered possession thereof. At a later stage, however, the defendants Nos. 1 to 3 filed another joint written statement denying the statements of their previous written statement. Now they have fully supported the plaintiff and denied that the defendants Nos. 5 to 9 got any possession of the suit land. They have stated in the second written statement that the proforma defendants Nos. 5 to 8 obtained a deed of gift by practising fraud upon them.

(3.) The pro forma defendant No. 10 denied the allegations of the plaintiff and the case in the written statement is that by purchasing the jama of Rs. 137/- in an auction sale held by the court in an execution case in connexion with a rent decree obtained by the defendant against the tenants, khas possession of the disputed lands under the jama was taken with the help of the court and thereafter in 1344 B. S. the pro forma defendant No. 10 settled the lands with the previous tenants and since then the said tenants are in possession thereof under the new tenancy. It has been alleged that on account of getting the khas possession and remaining there for more than two years and due to the new settlement, the previous tenancy has been determined. In fact the pro forma defendant No. 10 besides the plea of fresh tenancy, relied upon the special limitation under Article 3 of Schedule III of the Bengal Tenancy Act. In the original written statement filed by the defendants Nos. 1 to 3 and 5 and 6 such special limitation was taken. The learned Munsif of the trial court held that there was no partition in respect of the 'ka' schedule properties as alleged by the plaintiff and that the plaintiff's claim for title and recovery of possession could not be entertained because such title has been extinguished as it was proved that rightly or wrongly khas possession of the suit land had been taken by the landlord adversely against the interest of the plaintiff for more than two years and therefore under Article 3 of the Schedule III of the Bengal Tenancy Act, the suit was barred by special limitation. In this view of the matter the suit was dismissed. In the appeal taken by the plaintiff the learned Subordinate Judge has found that the case of partition by metes and bounds had not been proved and that as Umesh had l/3rd share in both 'ka' and 'kha' schedule properties, the plaintiff acquired title in respect of that share of Umesh by virtue of the Will executed by the said Umesh, It has also been found that Umesh died during the pendency of the rent execution case. According to the learned Subordinate Judge the plaintiff as a co-sharer having l/3rd ownership in the 'ka' and 'kha' schedule properties can claim recovery of joint possession for his share only and thereafter he can sue for partition provided the instant suit is not barred by special law of limitation under the Bengal Tenancy Act and on that question of limitation his finding is that the suit properties were sold in auction on 25-11-36 in Rent Execution Case No. 392 of 1936 of the 2nd Court of Munsif, Serampore. The sale was confirmed on 4-11-37 and the execution case was dismissed on full satisfaction on that date. His further finding is that there is no evidence that the pro forma defendant No. 10 took possession through court and that there is no such averment in the written statement filed by the defendants Nos. 1 to 3 and pro forma defendants Nos. 5 and 6. The learned Subordinate Judge has, however, noticed that in the written statement filed by the defendant No. 10 the allegation was that possession of the suit properties was taken through court and that after retaining the same in khas possession resettled the same in 1344 B.S. The learned Subordinate Judge has also noticed that there is no evidence in support of this averment made in the written statement. The finding of the learned Subordinate Judge is that the defendant No. 10, the Sebayet of the Tarakeswar Estate, obtained amicable possession out of court and that in 1346 B.S. the new jama of Rs. 104/- was settled with the defendant Nos. 1 to 3 and 9. The first appellate court below held that the suit was barred by Article 3 of Schedule III of the Bengal Tenancy Act as the landlord was in khas possession of the suit land for a period of about 3 years before the resettlement. Consequently the appeal was dismissed by the learned Subordinate Judge. The present appeal has been filed against the decisions of the courts below.