PRASANNA KUMAR DUTT PURKAYASTHA Vs. JANANENDRA KUMAR DUTTA

JUDGEMENT

(1.) In this case, it is conceded that the revenue sale of 1897 under which the plaintiff- appellant claims, became final and conclusive mere than twelve years before the date on which the suit was instituted. That being so, we may accept the contention of the appellant s learned Pleader that the finding in the judgment of the lower Appellate Court that the principal defendants have been in occupation of the lands in suit as trespassers for more, than twelve years before the institution of the suit, refers to adverse possession before the sale. Assuming this in the appellant s favour, the appeal may be decided on a very short ground. The question is one of limitation. Is or is not Article 121 of the first Schedule to the Limitation Act. applicable to this case. It is applicable if, the nature of the interest acquired by the principal defendants by adverse possession, is an "encumbrance" within the meaning of the word as it is there used. It is a, question of terminology. Is such an interest properly described as an encumbrance? It seems to us that in view of the decisions, of this Court in Karmi Khan v. Brojo Nath Das 22 C. 244 and Nuffer Chandra Pal Chowdhury. v. Rajendra Lal Goswami 25 C. 167 and of the, earlier authorities which were cited and followed in those cases, the questions which we have stated, can admit only of an affirmative answer. The learned Pleader for the appellant contends that the interest is not an encumbrance and cannot properly be described as such. He refers to the cases of Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528 and Rahimnddi Munshi v. Nalim Kanta Lahiri 1 Ind. Cas. 81 : 13 C.W.N. 407. No doubt in those cases, it seems to have been held in regard to Section 54 of the Bengal Land Revenue Sales Act (XI of 1859) that in the expression subject to all encumbrances" which there occurs, the word encumbrances" does not include an interest acquired before the date of the sale by adverse possession for the statutory period. On the other hand, it has always been held that the word as used in Section 37 where the expression is free from all encumbrances," includes such an interest at any rate for the purposes of limitation, and this point as to the meaning of the word in Article 121 was not considered in the cases of Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528 and Rahimuddi Munshi v. Nalini Kanta Lahiri 1 Ind. Cas. 81 : 13 C.W.N. 407.

(2.) In the present case, the sale took place not under Article XI of 1859, but under the Assam Land and Revenue Regulation of 1886. We assume again in the appellant s favour that the learned Subordinate Judge misapplied Section 71 of the Regulation and that the sale was the sale of an estate under Section 70. But the interest which the defendants acquired, is in our opinion on the authorities an encumbrance within the meaning of Article 121 and the suit is barred by limitation. The contention of the learned Pleader for the appellant that under Article 142 or 144, the period of limitation was twelve years from the date when possession was formally given to the purchaser at the sale, cannot be accepted. We may mention that there are two plots in dispute in this suit. The plaintiff s title to the first plot fails on the facts found by the Subordinate Judge, which cannot be now successfully assailed. His title to the one-half share of the second plot fails on the ground we have indicated.

(3.) The result is that the appeal must be dismissed with costs.