MAINDI SARDAR Vs. AKOOR CHANDRA GHOSH

JUDGEMENT

(1.) In support of this appeal, the only argument, which has been advanced on behalf of the appellants, is that the lower Courts erred in law in not holding that the suit was barred by limitation. It has first been contended that the lower Courts should have held that the suit was barred under the provisions of Article 120 of Schedule II of the old Limitation Act (XV of 1877). In this case, an order was passed in favour of the present appellants under Section 333, Code of Civil Procedure, on the 7th August 1897 and the present suit was instituted on the 16th December 1905. It is contended that the suit was barred under the provisions of Article 120 of the Limitation Act because it was not brought within six years from the date of the order passed under Section 332, Code of Civil Procedure. In our opinion, this contention cannot prevail. The suit which has bean brought by the plaintiffs is a suit for possession of immoveable property after establishment of title and for such a suit limitation was provided by Article 142 of Schedule II of Act XV of 1877. Under that Article, the period of limitation is twelve years and the suit has been instituted within that period.

(2.) It has next been contended that, if Article 120 does not apply, Article II or Article 13 of the Second Schedule of Act XV of 1877 would apply. As to this argument, we have only to observe that, in Article 11, no mention is made of orders under Section 332, though orders under other sections are mentioned, and that that Article has clearly no application to an order under Section 332. As regards the application of Article 13, it is only necessary to observe that under the provisions of Section 332 of the Civil Procedure Code, 1882, the suit, which the opposite party had to bring, was a suit to establish his right to the property, and not a suit to set aside the order under Section 332. Article 13 of Schedule II of the old Limitation Act, therefore, cannot apply, and this, in fact, has been held by the Madras High Court in the case of Ayyasami v. Samiya 8 M. 82. The points taken on the ground of limitation, therefore, fail.

(3.) Another point which has been taken is that, as the appellants were not parties to the suit in execution of the decree in which the plaintiffs are alleged to have taken symbolical possession, they are not bound by that proceeding and that the plaintiffs, by reason of that fact, are not entitled to claim that they are saved from the bar of limitation. This point, however, was considered by the lower Appellate Court, and there is a finding by that Court in the following words: "I have no doubt that the plaintiffs had actual and not constructive possession." That is a finding of fact which precludes us from taking up that point in second appeal.