ATARMOYI DASI Vs. RAMANANDA SEN CHOWDHURY

JUDGEMENT

(1.) In this case we have had the advantage of hearing a learned and elaborate argument by Dr. Mitra, but after giving our best and anxious consideration to his argument, we have come to the conclusion that this second appeal must be dismissed. This appeal has arisen out of a suit for establishment of the plaintiff's title, for recovery of possession and for damages and for mesne profits. The circumstances which gave rise to the suit, out of which this appeal has arisen, are, briefly stated, these: The appellant No. 1, Atarmoyi, purchased a plot of land about 1?-or 2 bighas in area in execution of a decree against one Kandarpa Chaudhuri and three others in February 1913. She qbtained symbolical possession thereof on the 12 August 1914. The respondent Kamananda Sen Chaudhuri filed, on the 12 September 1914, an application purporting to be one under Order XXI, Rule 100, of the C.P.C, for recovery of possession of the property which had been sold in execution and which had been purchased by Sreemati Atarmoyi. That application has teen tendered in evidence and is Ex. (F) in this case. The learned Munsif who heard that application came to the conclusion that inasmuch as symbolical possession had only been given to Sreemati Atarmoyi and inasmuch as the respondent Kamananda Sen had not been disturbed in his actual possession of the property, the application was one which failed and he dismissed the application. That was on the 17th April 1915. In July 1915 the present appellant brought a suit against the respondent Kamananda for recovery of damages on account of crops grown on the disputed land having been taken away. She lost the suit after contest on the 20 September 1915. Thereafter on the 6 July 1917 the present respondent filed the present suit alleging that he had in 1868 taken settlement of this property and that he and his four brothers were in joint possession thereof, that his brothers had separated and divided the property more than 12 years before the suit, that the property in question fell to the share of the present respondent, that he had been in exclusive possession thereof and that the crops grown on the land had been taken away by Sreemati Atarmoyi and that his possession had thereby been disturbed. Two points were discussed in the Courts below, namely, whether the present respondent had. Get this alleged right to the land in suit and whether his suit was barred by the Statute of Limitation. So far as the last question is concerned, the lower Appellate Court has held that the suit was not barred by the Statute of Limitation and, in particular, was not barred under Art. 11 A of the First Schedule of the Indian Limitation Act. So far as the first question is concerned, it has been found by the lower Appellate Court that the plaintiff had established his title to the land in suit. It is argued, however, by Dr. Mitra that on the question of the title to the land a decree has been made by the lower Appellate Court on a case which was not set up by the present respondent, that is to say, on a case which was not set up by the respondent, when he came and applied under Order XXI, Rule 100 of the C.P.C. As regards the question of limitation, Dr. Mitra has argued that Ex. (F) and the order thereon taken together conclusively show that the application which the present respondent made under Order XXI, Rule 100, was decided against him and that, therefore, it was his clear duty, if he wanted to contest the validity of the order under Order XXI, Rule 100, to come in with a proper plaint in respect thereof within the period mentioned in Art. 11A of the First Schedule of the Limitation Act, and that the present respondent not having done so, he cannot be heard now to say that his suit is not barred by the Statute of Limitation, nor should he be allowed to fall back on his argument that the subsequent dispossession gave a fresh start to the period of limitation for this class of suits. The argument is further put in this way, namely, that the Court which decided the case under Order XXI, Rule 100, had an undoubted jurisdiction to decide the matter, the grounds of the decision being matters with which we are not concerned, and that the fact that the decision went against the present respondent is sufficient for the purpose of establishing this contention, that if he wanted to get rid of the effect of the decision he should have come within the period mentioned in Art. 11A of the First Schedule of the Limitation Act. We have examined the record for ourselves and we are satisfied that although it is undoubtedly true that a person claiming to get rid of the effect of an order under Order XXI, Rule 100 is bound to bring his suit for such a purpose within the period mentioned in Art 11A of the First Schedule of the Limitation Act, the present suit is not one of that nature, for the cause of action which is alleged by the present responded in his plaint is a cause of action which has arisen subsequent to the date of the order made on the application under Order XXI, Rule 100. The present respondent's application under Order XXI, Rule 100 was dismissed on the ground that inasmuch as his possession had no? been disturbed,1 the application was one which did not come within the purview of Order XXI, Rule 100.

(2.) It is the question of possession with which the present respondent was concerned and he having remained in possession down to the date when his crops were taken away as alleged by him in his plaint, he was not under any necessity, as far as we can see, to go to a Civil Court for the useless formality of asking for possession of the property in question when as a matter of fact he remained in possession thereof. It is the subsequent dispossession which arose by reason of the present appellant taking away the crops grown on the property by the present respondent, which has given rise to the cause of action alleged in the plaint. That cause of action on the findings arrived at by the lower Appellate Court, the present respondent must be taken to have established to the satisfaction of the Court. In our opinion, this suit is not one for getting rid of the effect of an adverse order under Order XXI, Rule 100. Therefore, in our opinion, there is no substance, in the contention which has been put forward before us that the present suit is barred by the Statute of Limitation. We think the view taken by the lower Appellate Court is correct and so far as that point is concerned it fails.

(3.) As regards the second question, namely, whether a decree has been made on an allegation which was not set up, it is necessary to examine the plaint in the suit. As has been stated above, the cause of action which is alleged in the present plaint is that the plaintiff was allotted a certain share in the property in suit, that the plaintiff remained in possession thereof, that the plaintiff grew crops on the land, that these crops were taken away by the present appellant and that by the taking away of the crops of the plaintiff by the present appellant dispossession has taken, place. These allegations we must take, on the judgment of the lower Appellate Court, have been established by the plaintiff the satisfaction of the lower Appellate Court which was the final Court of facts. In these circumstances, it is difficult to say that relief has been granted by the lower Appellate Court on a state of facts different from the pleadings with which the plaintiff came to Court.