PRANKRISHNA MISTRI Vs. HAIMABALA DAS AND ORS.

JUDGEMENT

(1.) THIS appeal is by the defendant No. 1, against whom a decree for eviction was passed on the basis of a declaration of title of the plaintiff. The same plot of land was the subject -matter of the suit between the same parties in Title Suit No. 68 of 1946 of the Munsiff's court at Barpeta. The decree obtained in that suit was put into execution and' the possession obtained through Court by the plaintiff on 10 -6 -1950. There was actually no removal of the hut belonging to the defendant on the date of execution of the decree and though the writ of possession was served and possession obtained through the Nazir on demarcation by the Lot Mandal, - - the hut belonging to the defendant was allowed to stand. The present suit therefore, was instituted on 6th February 1952 for removal of the hut belonging to the defendant, who claims to possess the land by virtue of his own title.

(2.) IT is found as a fact that the plaintiff is entitled to the suit land for which the decree was originally passed in the Title Suit No. 68 of 1946. Therefore the only point that was agitated by the defendant apart from the question of title, was the question of limitation.

(3.) MR . Pathak appearing for the appellant has contended before me that since Order 21, Rule 35(1) of the Code of Civil Procedure entitles the decree -holder to get khas possession, - - any possession short of taking actual possession is no possession in the eye of law. The relevant clause runs as follows :