(CHAUDHURI) DALMIR SINGH Vs. JOTI PRASAD

JUDGEMENT

(1.) This appeal must succeed. The plaintiff in the Court of first instance is the respondent No. 1 here. He purchased from the respondent No. 2, Mt. Kartari, and his sister Mt. Jeoni a half-share in what was once their father Kalyan Singh's property. The appellants, who were the defendants Nos. 1 to 4 in the Court of first instance are admittedly in possession of this property. The other half was sold by Kalyan Singh himself. There was a litigation relating to that half, between the purchasers and the present-appellants, and in that litigation the present appellants were successful. We have however, nothing to do with that case. The plaintiff said in the plaint that there was an arrangement made between Kalyan Singh and the defendants, who also had shares in the same khewats, that the defendants should manage the property and pay Kalyan Singh a certain amount of profits year by year. He further alleged that this arrangement continued up to 1911. It was clearly the idea to show that the plaintiffs predecessors-in-interest and the plaintiff had been in possession within 12 years of the suit. The claim was for recovery of possession.

(2.) The defendants pleaded that they had been in adverse proprietary possession for more than 12 years and the title of the plaintiff's predecessors was extinguished.

(3.) The learned Subordinate Judge found that in 1860 there was a lease granted by Kalyan Singh in favour of the predecessors-in-title of the appellants, and the term of the lease was for 15 years. The rent fixed was Rs. 30 per annum. Since the expiry of the lease no rent was paid. In the view of the learned Subordinate- Judge, on these facts, the suit was time barred. The learned Subordinate Judge also considered the question whether the fact that the defendants were co-sharers of Kalyan Singh in any way favoured the plaintiffs case. He found that even if the defendants position be considered as co-sharers, they had definitely proved an ouster by the fact that they had never paid any rent or profit since 1870. On these facts the suit was dismissed.