DHAJADHARI GHOSH Vs. UNION BOARD OF KENDRAGORIA

JUDGEMENT

(1.) This is an appeal on behalf of the defendant in a suit instituted by the Union Board of Kendragoria in respect of a strip of land which it claimed as part of a public road vested in it. The plaintiff board is a local authority constituted under the Bengal Village Self. Government Act of 1919, and its case was that the defendant had encroached upon the disputed land by putting up certain sheds over it, and it accordingly asked for removal of the encroachment and also for a permanent injunction to restrain further encroachment by the defendant. The trial Court found in favour of the plaintiff and decreed the suit, and this decision was affirmed on appeal by the District Judge of Birbhum.

(2.) The defendant had raised various defences to the suit, but the only one with which we are concerned in this appeal is that of limitation which was negatived by both the Courts below. They concurrently took the view that treating the suit as one for possession of immovable property, the 12 years limitation under Art. 142 or Art. 144 did not apply, but that the suit was governed by Art. 146A of Schedule 1, Limitation Act, which provides an extended period of 30 years limitation for a suit by or on behalf of a local authority for possession of any public street or road from which it has been dispossessed or of which it has discontinued the possession. It is the propriety of this decision which is challenged in this appeal. On the findings arrived at by the Courts below, it is not disputed that if Art. 142 or 144 was held to apply, the suit would be clearly out of time. The question is, how far these findings are sufficient to attract the operation of Art. 146A, and it is necessary, therefore, to see what they are.

(3.) One important fact found is that the plaintiff Union Board came to be established in the Bengali year 1327 or 1328 B.S., that is to say, in or about the year 1921, so that it could not have been in possession of the disputed land at any time prior to this. As regards the alleged encroachment by the defendant, the finding is that it had commenced several years before the Union Board came into existence, and not four years after, as was the case of the plaintiff. The precise date when the defendant came into possession could not be ascertained, but both Courts found that it was well within 12 years from before the establishment of the Union Board. The suit was instituted on 6 May 1936, that is, more than 12 years, but within 30 years, from the date of the encroachment or of the inception of the Union Board. On these facts, it seems to us that there can be no room for the application of Art. 146A, and it is difficult to support the view taken by the Courts below. In our opinion, Art. 146A applies only where the local authority suing has been dispossessed or has discontinued its possession: in other words, it contemplates prior possession of the land by the local authority which it subsequently loses by reason of any act done by the defendant or otherwise. The article can obviously have no operation in a case like the present, where, as stated above, the local authority is found not to have been in possession at all. At the date the Union Board was created, possession was with the defendant, and if, therefore, the Union Board wanted to recover the land as part of a public road to which it became entitled upon its creation under the Act of its incorporation, it might and ought to have sued for such recovery within 12 years from the date of its establishment under Art. 144.