DIBAKAR DUTTA Vs. CHANDI CHARAN BOSE

JUDGEMENT

(1.) This is the Defendant's second appeal, arising out of a suit for declaration of the Plaintiffs' co-shebaiti right in the endowment in suit and for removal of the Defendant from co-shebaitship on account of misconduct and also for accounts. In the plaint, it was stated, inter alia that the Defendant was appointed a managing shebait by consent and that he used to render accounts as such managing shebait and that he having failed or refused or ceased to render such accounts, a decree of accounts was also necessary.

(2.) The defence denied the Plaintiffs' shebaiti right and also the Plaintiffs' allegation that the Defendant had been appointed managing shebait by consent. The allegations of misconduct on the part of the Defendant and about his liability for accounts were also controverted. The defence further took the plea of limitation in the written statement and, during arguments before the learned Munsif, the plea of limitation was expanded to include also a case of adverse possession. The learned Munsif dismissed the Plaintiffs' suit, holding, inter alia, that the suit was barred by limitation under Article 124 and/or Article 144 of the Indian Limitation Act. The learned Munsif also found that neither mismanagement nor misconduct nor non-performance of the sheba had been proved by the Plaintiffs so as to justify removal of the Defendant and the claim for accounts also could not be substantiated. On the question of the Plaintiffs' shebaitship, however, the learned Munsif found in their favour.

(3.) Against the above decree of dismissal, the Plaintiffs appealed and their appeal was decided originally by the lower appellate court on January 2, 1948. The lower appellate court affirmed the learned Munsif's finding on the merits that the Plaintiffs had a valid claim to the shebaitship. It further held that, in view of Section 10 of the Indian Limitation Act, the question of limitation also must be decided in favour of the Plaintiffs. It accordingly, gave the Plaintiffs a decree for joint possession in respect of the disputed debuttar properties. But, on the question of removal of the Defendant and also of accounts, it agreed with the learned Munsif and dismissed the Plaintiffs' claim in that respect. The suit, accordingly, was decreed in part, that is, only for joint possession, by the lower appellate court and the Plaintiffs' appeal was allowed in part.