LALU SAHU Vs. GHUNARIA URAON

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in an action for recovery of possession of a parcel of land in the village S.O.S. which at one time formed the property of two brothers Jadupat and Madhu-pat. Jaduput died in October 1885 and left a widow Ahila-Koer, who died in 1903. Madhupat died in 1893, and left a widow Sham Koer and two sons Kamalapat and Indrapat. Sham Koer died in 1897. On the 31 October 1903, the plaintiffs took a zeri-peshgi of the entire village from Kamalpat and Indrapat and now seek to recover possession of the disputed lands on the allegation that they were in possession as usufructuary mortgagees down to 1905 when they were ousted as the result of a. Criminal case. According to their case, upon the death of Jadupat the whole property passed by survivorship to Madhupat and upon, the death of the latter his two sons became entitled to the whole of it. The defendants cm the other hand resisted the claim on the ground that Jadupat and Madhupat wore separate, that the village belonged to the former and upon his death passed to his widow, Ahila Koer from whose representatives they have derived possession. They also alleged that neither the plaintiffs nor their processors-in-interest had any possession of the property within 12 years of the suit and that consequently the claim was barred by limitation.

(2.) The Court of first instance found in favour of the plaintiffs upon both the points and made a decree in their favour. The Judicial Commissioner upon appeal has found in favour of the plaintiffs on the question of title, but has dismissed the suit on the ground that it is barred by limitation.

(3.) The plaintiffs have now appealed to this Court and the sole question which has been argued before me is whether the decision of the Judicial Commissioner upon the question of limitation can be sustained. On behalf of the appellant it has been argued that as according to the facts found by the Court below the sons of Madhupat did not obtain possession of their father's property, article 142 of the Limitation Act does not apply and that the appropriate article is article 144. In support of this view reliance has been placed upon an observation in the case of Trilochun V/s. Nobo Kishore 2 C.L.R. 10 On behalf of the respondents it has been argued that as the plaintiffs alleged possession and dispossesion, their case is governed by article 142, that the plaintiffs ate further not in any better position than their mortgagors who would be bound to sue within 12 years from the death of their father; and that even if Article 144 is applicable according to the facts found, the defendants have acquired a good title by adverse possession.