JOBEDA KHATUN Vs. SHEIK MONABALI

JUDGEMENT

(1.) Two points have been raised in this case on behalf of the defendants-appellants. The first is that Ex. 3, the kabala by which the plaintiff purchased the land in suit, was not rightly admitted in evidence by the trial Court. The document was not filed in proper time. A certified copy of it was tiled before the suit was decided. An objection was taken to the reception of the certified copy and the plaintiff filed an affidavit saying that the original was filed in another Court and the learned Munsif accepted the copy on the ground that it would be an unnecessary waste of time to call for the original. The learned District Judge on appeal observed that this was only a "talking point" and had no substance whatever. The certified copy of the document was received by the Munsif in order to avoid delay. In our opinion it well came within Section 65(c), Evidence Act, as it was not possible then to have the original brought within reasonable time. This objection must be overruled.

(2.) The second ground is that in this case the Courts below ought to have held that Art. 3, Schedule 3, Ben. Ten. Act, applies. A suit for rent was brought by the landlord and the holding was sold in execution of the decree and purchased by the appealing defendants. More than two years after the defendants obtained symbolical possession through civil Court, the present suit was brought to recover possession from them on the ground that the decree under which the property was sold was not a rent decree but a money decree and that the interest of the plaintiff did not pass thereunder. The defendants-pleaded limitation and said that as the suit was brought more than two years after they bad obtained possession, through Court, it must be held to h& barred by limitation. The plaintiff in1 his plaint alleges dispossession at a much later date. His case is that he was in quiet possession of this property. The landlord obtained a decree secretly, and had the property sold and the defendants obtained formal delivery of possession without his knowledge. He was, however, dispossessed in January 1914 much later than the date of delivery of possession through Court. The trial Court found that the plaintiff was dispossessed long after the formal delivery of possession to the defendants in consequence of a case under Section 107, Criminal P.C., in which the defendants were alleged to have forcibly cut the paddy grown by the plaintiff.

(3.) That being so, there was dispossession by the defendants not under their purchase under the rent decree, but by a subsequent act of force. This finding; of the Munsif has not been set aside by the appellate Court though the learned. Judge disposes of the plea of limitation by relying upon certain cases which have held that in the circumstances present in this case the special limitation does not apply. The finding of the Munsif does not appear to have been challenged before the learned Judge. That being so it cannot be said that because the dispossession by the defendants was under the rent decree obtained by the landlord, therefore on the authority of Amiruddin Munshi V/s. Ulfatunnessa Bibi [1909] 3 I.C. 351 the special law of limitation will apply. That case has been discussed and dissented from in several cases, but it is not necessary in this case to discuss this point. We do not think that on the facts of this case the special law of limitation arises. Accordingly we dismiss this appeal with costs.