AJITULLA Vs. BILATI BIBI

JUDGEMENT

(1.) Defendant 1 is the appellant in this appeal. The plaintiff sued for recovery of possession of two jotes on the allegation that they belonged to his sister Bagiran Bibi who died leaving her as the only heir. Defendant 1 contends that Basiran Bibi was his stepmother and has made a gift of the jotos to him long before her death and delivered possession thereof to her. The Munsif dismissed the suit. The Subordinate Judge has decreed it.

(2.) The Subordinate Judge disbelieved the story of the gift. This finding of his cannot be challenged now. The question that has been raised is the question of limitation Basiran died in 1326, i. e., within 12 years of the suit which was instituted in 1923. She was living under protection of her husband Edol, father of defendant 1, who was looking after and cultivating the lands on her behalf. Ho evidently behaved perfidiously and allowed the name of defendant 1 to be recorded in the landlord's sherista. This was in 1316. The findings of the Subordinate Judge are not very clear, but it may be taken that in 1316 Edol declared his intention be possess the lands on behalf of defendant 1, and in 1318 Basiran's mother complained to the landlord about the registration of defendant l's name. The question is whether in those circumstances the plaintiff's suit is barred.

(3.) The position seems to be that Basiran should be taken to have been in possession till her death through her husband Edol unless Edol's possession became adverse to her at any point of time. The complaint of Basiran's mother in 1318 may well be put aside. It was not an act of Basiran and cannot be treated as an admission made by her that she was out of possession. The fact that in 1316 defendant l's name came to be recorded in the landlord's sherista is by itself no evidence of dispossession. This fact coupled with the fact that in that year Edol declared his intention to possess the land on defendant 1's behalf and adversely to the plaintiff may however amount to dispossession of the plaintiff; and the question is whether defendant 1 can set up such a plea.