MAHENDRA NATH BAGCHI Vs. TARAK CHANDRA SINHA

JUDGEMENT

(1.) These two appeals are by defendant 1 arising out of two suits for recovery of possession of some lands brought by the plaintiffs under the following circumstances. According to the plaintiffs the lands in suits belonged to the debutter estate of one Ishan Chandra Bagchi of whom the plaintiffs claimed to be the reversionary heirs and that after the death of Ishan Chandra Bagchi the properties were in possession of his daughter Hara Sundari after whose death they vested in the plaintiffs as the sole reversionary heirs of Ishan Chandra Bagchi. Defendant 1, the appellant, alone contested the suit and claimed the property as belonging to his and defendant 2's debutter, and he further claimed that they wore the reversionary heirs of Ishan Chandra Bagchi. The other defendants who are tenants and the pro forma defendants in one of the suits did not appear in the suits or in the appeals.

(2.) The main defence on which the appellant relies is limitation. In order to understand the plea it is necessary to give a few facts. The two suits which were numbered 96 and 541 of 1928 before the trial Court have to be considered separately because the facts are not the same in both cases. In Suit No. 96, the plaintiffs case now is that there wore tenants holding the lands under Hara Sundari which remained in plaintiff's constructive possession after her death. In Suit No. 541 the plaintiffs case is that the land was, during the lifetime of Hara Sundari, in the occupation of some tenants who left it and it gradually became jungly and fallow. It was in this state when Hara Sundari died.. The lands of both the suits were after Hara Sundari's death really in the possession of the plaintiffs who had title to them until the defendants asserted their right to these lands by having them recorded in the Record of Rights as included in their debutter.

(3.) The trial Court found title with the plaintiffs but dismissed their suit on the ground of limitation. The appellate Court has decreed the plaintiffs suit and overruled the plea of limitation which was accepted by the trial Court. The findings which the learned Subordinate Judge has come to are that on the death of Hara Sundari the lands in suit must be considered to be in the possession of the plaintiffs who were entitled to them, that the defendants may be said, for the first time to have claimed possession of the lands in suits in 1914, when at the Bujarat, during the District Settlement proceedings, they got their names entered in respect of these lands. It is better to quote the findings of the learned Judge because the entire decision of the case depends on them. After referring to the evidence of some of the defence witnesses he says: The evidence of these two witnesses, coupled with the admission of defendants 1 and 2 in Ex. 2, leaves no room for doubt in my mind that for the first time they had claimed the disputed lands at the time of the Bujarat and further it is clear from the said evidence that calculated from the time of the Bujarat those two suits are well within time.