BAHADUR OF MURSHIDABAD Vs. GOPINATH MANDAL

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff, the Nawab Bahadur of Murshidabad, in an action for declaration of title to immovable property and for recovery of possession thereof with mesne profits. The plaintiff claimed the disputed land as included within his Mouzi Gandharbapur, which is a part of his estate Gopmathpur. The defendants, on the the other hand, laid claim to the property as included within their Monza Monoharpur. It was not disputed in the Courts below that the plaintiff was entitled to Mouza Gandharbapur, and the defendants to Monoharpur. In so far, therefore, as the question of title was concerned, the sole point in controversy reduced itself to one of boundary dispute. The defendants further pleaded that the title of the plaintiff, if any, had been extinguished by limitation. In the Court of first instance, an Ameen was appointed to relay the thak and survey maps, and to ascertain whether the disputed land lay within the ambit of the one village or other. His enquiry led to a result of an inconclusive character, as he could not make the boundary lines, as shown in the two maps, agree. The Court was thereupon of opinion that a fresh enquiry might be directed, unless the claim of the plaintiff failed on the ground of limitation. Upon this question, the Court of first instance held that the plaintiff had failed to prove possession within twelve years, or indeed, at any time since the Permanent Settlement. In this view, the suit was dismissed with costs. Upon appeal the learned District Judge agreed with the original Court as to the unsatisfactory nature of the enquiry by the amin, but did not direct fresh investigation, as, in his opinion, the plaintiff had failed to prove possession within twelve years before 1891, while the respondent had established adverse possession for that period. The learned District Judge, however, did net, in his determination of the question of adverse possession, refer to the character of the land which was admittedly waste land for many years, and was, from time to time,, covered with water, in which people in general used to catch fish. Against the decree of dismissal made by the District Judge, the plaintiff has now appealed to this Court, and on his behalf it has been argued that the Courts below have misunderstood the effect of Section 4 of the Murshidabad Act, 1891, that, as a result, the case has not been properly tried that, in any event, the question of title ought to have been first determined, and the question of adverse possession should thereafter have been considered with particular regard to the nature of the land and its possible user. In our opinion, these contentions are well founded and must prevail.

(2.) Act XV of 1891, upon the fourth section of which reliance is placed on behalf of the appellant, was passed on the 21 March 1891, with a view to confirm and give effect to an indenture between the Secretary of State and the then Nawab Bahadur of Murshidabad. By this indenture, certain properties, , described i-n the schedule attached thereto, were vested in the Nawab, Bahadur for the maintenance of the honor and dignity of his station as the premier noble of the provinces of Bengal, Behar and Orissa and the properties were made descendible to his lineal heirs according to the custom of primogeniture. The second section of the Act confirmed the indenture, while the third section authorised the Governor-General in Council to include additional immovable property in the schedule annexed thereto. The fourth section, the construction of which is the subject of controversy in this litigation, provides a rule of limitation for claim to the scheduled immovable property, and is in these terms: No right to any immovable property mentioned in any of the schedules to the said indenture, or in any addition which under the last foregoing section may, from time to time, be made to these schedules, or any of them, shall, if the right has not accrued before the passing of this Act, be acquired by any person by adverse possession or assertion of title, unless such adverse possession or assertion of title is found to have existed for sixty years.

(3.) On behalf of the appellant, it is contended that the effect of this section is to enable the Nawab Bahadur to bring a suit for recovery of possession of /the scheduled immovable property within sixty years from the date of dispossession, subject to the restriction, that this rule would have no application to property to which statutory title might have been acquired by adverse possession for twelve years before the 21 March, 1891, when, the Act came into force. On behalf of the respondents, on the other hand, it has been argued that the section does not lay down any rule of limitation for the institution of suits, and that suits for the recovery of possession of the scheduled property must be commenced by the Nawab Bahadur within twelve years of the date of dispossession under Art. 112 or of the commencement of adverse possession under Art. 144 of the Limitation Act as the case may be, inasmuch as Art. 149 has no application. In support of the last portion of this argument, reliance has been placed upon the case of Municipal Commissioners V/s. Sarangapani Mudaliar 19 M. 154. Before we deal with the question of the true effect of Section 4 of the Murshidabad Act, which is apparently one of first impression and altogether free from difficulty, it is necessary to refer briefly to the question of the applicability of Art. 149 of the Limitation Act. That article provides for a period of limitation of sixty yeas for all suits by or on behalf of the Secretary of State for India in Council. It is obvious that this has no application to the Nawab Bahadur, because, even if the Nawab Bahadur be treated as a grantee of the scheduled property from the Secretary of State, he stands in the same position as any other grantee or proprietor. Indeed, the view that Art. 149 is applicable only to suits by or on behalf of the Secretary of State has been affirmed by the Judicial Committee, in Secretary of State V/s. Durbijoy Singh 19 C. 312 : 19 I.A. 69, and Jagadindra V/s. Hemanta KumariDebi 32 C. 129 : 7 Bom. L.R. 765, while the case of Kutha Perumal Rojah V/s. Secretary of State for India in Council 30 M. 245, shows that the Art. 149 cannot be applied to assignee from the Secretary of State. This view is not controverted on behalf of the appellant, who relies not upon Art. 149 of the Limitation Act, but upon Section 4 of the Murshidabad Act. The question, therefore, reduces itself to this: Does Section 4 of the Murshidabad Act restrict the application of Art. 142 or 144 of the Limitation Act to a suit by the Nawab Bahadur for the recovery of any portion of the scheduled property. In our opinion this question ought to be answered in the affirmative, because if the contrary view were maintained, the result of the application of Art. 142 or 144 would be clearly contradictory to the intended effect of Section 4 of the Murshidabad Act.