HARENDRA CHANDRA NATH Vs. BIJOY KRISHNA NATH

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 3-4-86 passed by the District Judge, Cachar, Silchar dismissing the appeal and confirming the judgment and decree dated 17-12-83 passed by the Assistant District Judge, No. 2, Silchar, Cachar, in Title Suit No. 77 of 1980.

(2.) At the time of admission of appeal only one substantial question of law was formulated i.e. "whether the suit is barred by limitation ?"

(3.) At the time of hearing also the learned counsel for the appellants has urged only this question of law. The fact of the case, is that - Upendra Chandra Nath (since deceased) instituted a suit (T.S. No. 77/80) in the Court of the Assistant District Judge No. 2, Cachar, Silchar against Bijoy Krishna Nath, Anil Kr. Nath and two others. The third and fourth defendants were pro forma defendants. During the pendency of the suit Upendra Ch. Nath died leaving behind the appellants as his legal heirs. Accordingly their names were substituted. The plaintiff-Upendra Ch. Nath along with his brother Satyendra Chandra Nath jointly owned and possessed land measuring 22 bighas 15 kathas 2 chataks covered by S. R. Patta No. 95. Satyendra Nath died leaving his widow as his sole heir. After 3/4 years of the death of Satyendra Nath his widow Hemoprova Devi, remarried. According to Hindu Widows' Re-marriage Act, 1856 her share of property reverted back to the plaintiff. Late - Upendra Ch. Nath. He was possessing the land since the death of Satyendra Nath and the widow never possessed even after the death of Satyendra Nath. However, her name was recorded in the record of rights. Therefore, the Late Upendra Ch. Nath after death of Hemaprova Devi approached her sons through her second marriage, to strike out the name of their mother from the records of right as they had no right, or claim over the suit land. Request for striking out the name was made in the month of May, 1980 to the defendants. However, they did not comply with the request. Hence, the suit was filed for declaration of plaintiff's right, title and interest over the suit property and for confirmation of his possession over the suit land. During the pendency of the suit the plaintiff Upendra Ch. Nath expired and the names of the present appellants were brought into the record. 3A. The defendants entered appearance and contested the suit by filing written statement. After examination of witnesses, the Assistant District Judge by judgment dated 17-2-1983 dismissed the suit with costs. While dismissing the suit, the trial Court held that the suit was barred by limitation