NIASHA GHOSE Vs. KARI SIDDEK ALI AND ORS.

JUDGEMENT

(1.) THE short points raised in this appeal are (1) whether: the suit as framed is maintainable and (2) whether the suit is barred by limitation.

(2.) THE facts are that Kari Siddek Ali, Gopesh Chandra Deb and Jyotirffloy Deb who are Plaintiffs Nos. 1, 2 and 3 respectively, brought a suit for cancellation of a deed stated to be a Kabuliyat dated the 10th March, 1950 executed by Defendant No. 1 Niasha Ghose in favour of Plaintiff No. 1 in respect of the land set out in schedule 1 attached to the plaint after declaring the said Kabuliyat to be, a false, fabricated and illegal document. Plaintiffs further prayed for a permanent injunction restraining the Defendant from taking possession of the disputed land or from disturbing the peaceful possession of the Plaintiff No. 1 through Plaintiffs Nos. 2 and 3. The case of the Plaintiffs as set out in the plaint is that the land of the first schedule is situated in ward No. '2 of the Karimganj Municipality. Plaintiff No. 1 was a tenant with jote right in respect of the land under Khan Bahadur Abdul Mazid Choudhury on payment of an annual rent of Rs. 40/ -. He was occupying the land after constructing two houses described in schedule 2 to the plaint.

(3.) BOTH the courts below decreed the suit and the present appeal has been filed by Defendant No. 1. The contention of the Appellant is that the Plaintiffs' remedy was to file a suit for declaration of their right and title to the property and for possession if they are out of possession. The suit for mere cancellation of the document executed by Defendant No. 1 is not maintainable under Section 39 of the Specific Relief Act. It is secondly contended that if the present suit as framed is maintainable, it is barred by limitation as Article 91 of the Limitation Act will be attracted and the starting point of limitation will be the date of knowledge.