MANULLA KOLU Vs. PRASANNA KUMAR SARKAR

JUDGEMENT

(1.) This appeal is by the defendants. The suit was one for khas possession. The plaintiff, who is the landlord, alleged that one Isa Sheikh, an occupancy raiyat, was the original tenant until 1319, that he then abandoned the holding and when the plaintiff went in 1320 to take khas possession, he was resisted by the defendant who alleged that he was a purchaser from Isa Sheikh. The holding in question was not a transferable one. The defence was that Isa had left the holding more than 12 years before the institution of the suit, the first defendant s wife having purchased the holding from him in 1311, and after her death the defendants, her heirs, possessed the land and paid rent to the landlord in the name of the old tenant, therefore, they were not liable to be ejected, and the suit was barred by limitation. Both Courts decreed the suit.

(2.) The facts found are that Isa sold this holding 12 years and 3 weeks before the institution of the suit, the defendants and their predecessor have been in fact in possession since then, but the plaintiff was not aware of this till at most 5 years before the institution of the suit. The defendants alleged a tender of rent to the plaintiff in 1318, and though the Appellate Court has not definitely come to a finding whether that story is true or not, at any rate this much is found that before that the plaintiff was not aware of the transfer and of the defendants possession. There is also a finding by the first Court, which is not touched by the Appellate Court, that for the years 1313 to 1316 the plaintiff got a decree for rent against the original tenant Isa. The rent decreed was deposited in Court and on that occasion the defendants did not attempt to prove that the deposit was made in his name" (which I take to mean that the defendants did not try to prove that they made the deposit) or that at that time any plea of the transfer of Isa s interest was made. The first Court also found that the defendants never tried to get recognition from the plaintiff, a finding with which the Appellate Court did not interfere. On these findings the Courts have held that the suit was not barred by limitation.

(3.) The question of limitation is again raised before me. Though it is called a question of limitation, it is presented as a plea of adverse possession, that is that by continuing in possession for over 12 years the defendants have acquired the limited interest of tenants. The learned Vakil for the appellants has referred to two cases to show that the question of the landlord s knowledge of the transfer is immaterial and that to succeed he has to make out facts sufficient to establish a case within Section 18 of the Limitation Act, that is, that he has been kept out of the knowledge of the right to sue by fraud till within the period of 12 years before suit.