HARE KRISHNA RANA Vs. JAMINI SUNDARI DASSI

JUDGEMENT

(1.) IN this appeal on behalf of the plaintiffs, the particular question which arises for decision is whether, under Order 21, Rule 100, Civil P. C., dispossession referred to therein must be in course of the execution proceedings or may be a subsequent event.

(2.) THE plaintiffs brought the present suit out of which this appeal arises for a declaration of their eight annas share in a particular sub -tenure held by them under the Patnidar. The plaintiffs' predecessor Gostha and pro forma defendant 5 Kedar after purchasing the eight annas share in the Patni sued Satish Adhikary who was then the owner of the sub -tenure in suit. That suit was decreed and in execution of this decree Gostha and Kedar became the auction -purchasers, the sale having taken place on 15th February 1924, and possession was delivered on 24th May 1924. The plaintiff a claimed in the pre -sent proceedings as the heirs of Gostha. Kedar who was the owner of the remaining eight annas share of the sub -tenure had borrowed money from defendant 3 Narendra and the latter obtained a decree for the realisation of the said amount. Defendant 3 purchased the entire sub -tenure on 16th August 1935, on the allegation that the entire sub -tenure belonged to Kedar alone. Defendant 3 obtained delivery of possession under Order 21, Rule 95, Civil P. C., on 19th May 1936. Six months later the plaintiffs' predecessor Gostha filed an application under Order 21, Rule 100 of the Code is respect of this half share in the sub -tenure which belonged to him on the allegation that he had been dispossessed by defendant 3 on 6th November 1936, that is, long after the possession is alleged to have been delivered to defendant 3 in execution of the decree. That application was finally disposed of by the learned Subordinate Judge holding, (1) that on the allegation made by the petitioner that dispossession by the auction -purchaser was subsequent to the delivery of possession in execution of the decree, the provisions of Order 21, Rule 100 of the Code were not attracted, Accordingly, the application was not maintainable; (a) that there was no reliable evidence to show that dispossession had taken place on 6th November 1936, as alleged by the petitioner and not on 19th May 1936, as evidenced by the writ of delivery of possession; and (3) that the petitioner had failed to show that he was in possession of any portion of the disputed properties on his own account. The application was accordingly dismissed. No suit as contemplated under Order 21, Rule 103 of the Code was brought by Gosta or after him by his successor -in -interest within one year of 5th April 1937, that is, the date of disposal of the application purporting to have been under Order 21, Rule 100 of the Code. The plaintiffs' case is that they are entitled to bring this separate suit as they did in December 1941, as the application, which had been tiled purporting to be under Order 21, Rule 100 of the Code, was held to be not maintainable. In the present plaint, however, the date of dispossession as given is 29th Magh 1345 B. S. corresponding to 12th February 1939 and neither 19th May 1936, the date of the delivery of possession under Order 21, Rule 95 of the Code to the defendant, nor 6th November 1936, as had been alleged in the application filed by Gostha under Order 21, Rule 100 of the Code. The plaintiffs contend that the present suit is not only maintainable in law but is not barred by limitation, as they have come within 12 years of the date of their dispossession.

(3.) THE principal defence is that the suit is barred by limitation. The learned Munsif overruled the objection raised by the defendant and decreed the plaintiffs' suit. On appeal the learned Subordinate Judge held otherwise and the suit was dismissed. Hence this second appeal on behalf of the plaintiffs.