RAM KRISHNA BOSE Vs. MOHANTA BHAGWAN RAMANUJA DAS

JUDGEMENT

(1.) This is an appeal from a decision of the learned Subordinate Judge of Cuttack, dated the 28th March 1912. The appeal was heard by us ex parte and it was decreed on the 28th May of the present year. Subsequently another Bench of this Court on an application made to them set aside our judgment and directed us to re-hear the appeal. With all deference, I doubt the jurisdiction of another Bench of this Court o set aside our judgment and direct us to re-hear the appeal. If there were grounds for setting aside our judgment, the application ought to have been made to us. I understand from Sir Rash Behari Chose, that he mentioned the matter to the Chief Justice who also expressed his doubt as to the jurisdiction of another Bench to do so. However, Sir Rash Behari Ghose, on behalf of the appellants, has not pressed the point and is willing that the appeal should be re-heard by us.

(2.) The point that we dealt with on the last occasion was a point of law arising on the findings of fact made by the learned Subordinate Judge in his judgment. On that occasion, Sir Bash Behari Chose on behalf of the appellants accepted the findings of fact made by the learned Subordinate Judge and argued that the learned Judge had arrived at a wrong conclusion on a point of law. We accepted the argument put forward by Sir Rash Behari Chose and decreed the appeal. On the appeal coming on before us for re-hearing, both side, agree that, on the findings of fact made by the learned Judge at the Court below, his judgment cannot stand. But the learned Counsel for the plaintiff-respondent has asked us to dissent from the findings of fact made by the learned Subordinate Judge on which his judgment is based. The defendants, who are the appellants before us, claim through their grandfather who had sot a lease of the property for 18 years in the benami of Bishriu Priya. That lease expired in 1880. The story put forward by the plaintiff is that there was a verbal lease or arrangement between one Hari Ballav Sur and the former Mohant, Hayagriba, in the year 1287. The evidence shows that the late Mohant, Hayagriba, was gathered to his fathers before the date of the lease. An attempt was made by some of the plaintiff s witnesses to place this verbal arrangement at an earlier date before the death of Hayagriba. That was the case which the plaintiff invited the learned Judge to express his opinion on and when that case failed as false the learned Judge clearly and rightly refused to enter into a consideration of the case that this man Hariballav had entered into some arrangement other than that set up resulting in his possession of the property as a licensee. In that, I think, the learned Subordinate Judge was quite right. The documentary evidence read to ns leaves no doubt on my mind that Hariballav was connected with the property solely as a relative or guardian of the two present defendants. The documentary evidence seems to me to be conclusive on that. This story about the verbal lease to Hariballav on his entering into possession of the property as licensee in his own right, I am satisfied, is wholly untrue. On the evidence, I am clearly of opinion that the learned Subordinate Judge came to a correct conclusion. That being so, the learned Judge was right when he held that the said suit was barred by limitation. We pointed out in our former judgment that on that finding, the learned Judge was not entitled to give to the plaintiff the relief that lie has given. For the second time I must express my dissent from the result arrived at by the learned Judge of the Court below. The appeal must, therefore, be decreed and the plaintiff s suit dismissed with tests in both Courts. Richardson, J.

(3.) I agree.