KIRON SOSHI DASI Vs. OFFICIAL ASSIGNEE OF CALCUTTA

JUDGEMENT

(1.) In this case the defendant, a lady of the name of Kiron Soshi Dasi, appeals from a decision of my learned brother Buckland, J., in a suit brought against her by the Official Assignee of Calcutta for possession of premises No. 10, Sonagachi Lane, in the town of Calcutta together with mesne profits. On 25 February 1896, it appears that a woman of the name of Bhuban Mohini Dasi executed a deed of gift of the property in suit in favour of two persons, Gora Chand Dhur and Gour Mohan Dhur, sons of one Kunja Behari Dhur and these persons on 14 March 1912 granted a mortgage of that property in favour of one Maharaj Kishore Khanna. In July 1914, Khanna instituted a mortgage suit against Gora Chand and Gour Mohan which resulted in a final decree being passed in 1916 and a sale of the property in execution of the decree took place on 10 August 1918. On the day of this sale, Bhuban Mohini not only protested to the Registrar that the property still remained in her and that the deed of gift under which the mortgagors claimed was null and void but she commenced a suit for declaration of her title, for a declaration that the deed of gift was not binding on her and for other reliefs against the mortgagee. She died afterwards and the present defendant Kiron Soshi Dasi was substituted in that suit in Bhuban Mohini's place and stead. While that suit was proceeding, the mortgagee Khanna in his own mortgage suit obtained a sale certificate on 12 March 1919. On 13 March 1923, the suit of Bhuban Mohini which had become the suit of the present appellant Kiron Soshi was dismissed by Page, J. Thereupon, on 25 April 1923, Khanna the mortgagee, in his own suit applied for an order against the present appellant or any other person to vacate and make over vacant possession of the mortgaged premises No. 10, Sonagachi Lane, on the allegation that a certificate of sale had been granted to him but that the premises were in the occupation of the said Kiron Soshi Dasi who refused to give up possession in spite of repeated demands.

(2.) In that application, Kiron Soshi Dasi produced evidence of various tenants of the property who deposed to the fact that she and Bhuban Mohini had been in possession for many years. She did not dispute that she was in possession of the property or contend for a single moment that she was minded to give it up. That application was in the end dismissed by an order made by Greaves, J. Thereafter it is not necessary to detail the events except to say that the present suit was brought by the Official Assignee because Khanna the mortgagee was adjudicated an insolvent on 25 September 1929.

(3.) The plaint in the suit which is before us was filed on 9 August 1930. At the hearing of the suit, it was not disputed that Bhuban Mohini and the defendant after her had been in adverse possession of this property even since the date of the deed of gift which Bhuban Mohini had executed to Khanna's mortgagors. At the settlement of the issues, a plea of limitation was taken and a plea of adverse possession and Mr. S.M. Bose on behalf of the plaintiff gave an express admission that the possession had been adverse possession from 1896 onwards. In these circumstances, the defendant who was concluded by the judgment of Page, J., from denying that title was in the Official Assignee on the footing that the deed of gift was valid and that the mortgage to Khanna was a good mortgage contended, first, that the suit was barred by limitation because it was not brought within one year of the order made by Greaves, J., in 1923 dismissing the application for possession. She also contended that her title by adverse possession was a complete defence to the suit. On this point the plaintiff said that Page, J.'s judgment made it impossible for her in this suit to set up Art. 142 or Art. 144, Limitation Act, as a defence.