AMULYA CHARAN DAS Vs. BAIJUNTHA NATH DATTA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit for recovery of possession. The plaintiff came to Court on the allegation that the lands in suit form the jote of one Prosonna Kumar Biswas, on whose death in 1324 they devolved upon his widow, Kadambini, and on the death of the latter in 1329 they devolved upon Prosonna's sister s, son, Atul, as his reversioner. The plaintiff is the son of Atul who died sometime in 1333. The plaintiff's case, therefore, is that he has jute right in the lands in suit and that he was forcibly and illegally dispossessed by defendants Nos. 1 and 2, his landlords. On these allegations he instituted the suit. In the plaint, however, he made a prayer for declaration of his jote right in the land in suit. Defendant No. 1 filed a written statement in which he did not deny the jote of Prosonna; in fact he admitted that the lands in suit appertained to the holding which Prosanna held under him. He did not state that Kadambini was not Prosanna's widow, or that Atul was not the reversioner of Prosanna or that plaintiff was not the son of Atul. His material defence was that he had not illegally taken possession of the lands, in suit and that the suit was barred by limitation. Paragraphs 8 and 16 of the written statement contain his substantial defence which is that at the time when he took possession the said jote was not subsisting, it having been abandoned on Prosanna's death. Admittedly the defendants Nos. 1 and 2 took possession more than one year before the suit.

(2.) The Munsif held that the holding was not abandoned, and that the suit was not barred by limitation. On the last mentioned point he held that as defendant No. 1 did not acknowledge the plaintiff's father as his tenant, the special limitation of one year mentioned in a. 27 of Act VIII of 1869 (B.C.) was not applicable.

(3.) On appeal the learned Subordinate Judge has held that Section 27 of Act V7JI of 1869 applied and the suit is barred by limitation. He also observed that if it had been necessary, he would have held that the holding had been abandoned but as he dismissed the suit on the ground of limitation, he did not examine the evidence on the question of abandonment from all aspects. The vital question in this appeal is whether the Subordinate Judge's judgment on the question of limitation is right. In my judgment it is. The material part of Section 27 runs as follows: All suits to recover the occupancy of any land, farm or tenure from which a ryot, farmer or tenant has been illegally ejected by the person entitled to receive rent for the same shall be commenced within the period of one year from the date of the accruing of the cause of action, and not afterwards.