DUKHU MAHTHA Vs. NANDLAL TEWARI

JUDGEMENT

(1.) The question to be determined in this appeal is whether the claim of the plaintiff is barred by adverse possession under Article 144 of the Indian Limitation Act.

(2.) To enable this question to be considered it is necessary to state the material facts. It is the admitted case that the plaintiff is the occupancy tenant of 'khata' Nos. 36 and 37 of village Silphore, that Thakkan Tewari and his brother Kali Tewari were 'khorfa' tenants with respect to a part of the land comprised in the two 'khatas' and they used to pay annual rent of Rs. 3 to the plaintiff. In the record of rights prepared in 1922 Thakkan Tewari and Kali Tewari are shown as under-raiyats paying rent to the plaintiff. In 1924 Thakkan Tewari and Kali Tewari died. The plaintiff alleged that he obtained 'khas' possession of the land soon after; but in 1944 he was dispossessed by the defendants. The plaintiff therefore brought the suit for ejecting the defendants. The main ground of defence was that the plaintiff never obtained possession of the land after the death of Thakkan Tewari and Kali Tewari. The defendants asserted that they continued in possession as heirs of Thakkan and Kali Tewari, that they were permanent tenants of the land and were not liable to be ejected. The learned Subordinate Judge accepted the case of the plaintiff and decreed the suit in his favour. In appeal the decree of the Subordinate Judge has been reversed by the District Judge of Purulia, who held that the defendants had established that they were in adverse possession for a period of more than twelve years and the suit was barred by time.

(3.) In support of this appeal Mr. G. C. Mukharji addressed the argument that Section 46 of the Chotanagpore Tenancy Act was a complete bar to a permanent transfer by a 'ryot' of his right in a holding or any portion thereof and the learned District Judge was erroneous to hold that the defendants had established adverse possession of an interest which is proscribed by statute. Section 46 of the Chotanagpore Tenancy Act states: