ARABINDA BARMA AND ORS. Vs. CHANDRA KANTA

JUDGEMENT

(1.) I am afraid, the decision of the learned Subordinate Judge has to be set aside and the case remanded to the Court of Appeal below for disposal according to law. The appeal has been preferred by Defendants 1 -3 to the action which was in the nature of a suit for declaration of title and recovery of possession.

(2.) IT is not seriously contested before me that Lalit had no right to mortgage the land in suit and that there was a good transfer made by Lalit in favour of the Plaintiff in 1921, and, as such, the Plaintiff had a good title to the land; but the main question which has been argued before me is the question of limitation.

(3.) THE other contention of Mr. Ghose on behalf of the Appellants is that the learned Subordinate Judge has committed an error of law in observing that the Defendants were not entitled to tack the period of possession prior to their purchase. He rightly contends that if their vendor who got or alleged to have got delivery of possession in May, 1934, actually got possession of the land, then the Defendants claiming by virtue of a purchase through him would be entitled to tack the period of their vendor's possession to that of their own. This proposition is very well established. See, for instance, - -'Pandappa Mahalingappa v. Shivalingappa Murtoppa' : AIR 1946 Bom 193 (A) - -'Paluru Ademma v. Achala Penchelu Reddi' : AIR 1946 Mad 281 (CB) - -'Hukum Chand v. Raja Ran Bahadur Singh', AIR 1919 Pat 146 (C) - -'Bibhuti Bhusan Modak v. Girish Chandra' : AIR 1950 Pat 191 (D). The Defendants were not claiming as independent trespassers that they should be deprived of the right to tack their vendor's possession to their own. The learned Subordinate Judge, therefore, fell into error in holding that the Defendants could not tack the possession of their vendor to their own. But a case of adverse possession has to be established by the Defendants and the onus is strongly upon them to establish it. If it is found that there is no evidence in support of their actual possession or that of their vendor, the mere fact that they were mutated or that there was delivery of possession may not be enough; but all this has to be considered by the Court of fact before a finding is arrived at on the point.