ABINASH CHANDRA CHOWDHURY Vs. TARINI CHARAN CHOWDHURY

JUDGEMENT

(1.) The events which have led up to the suit out of which these appeals arise have been narrated in detail in the judgment of the District Judge. The facts, so far as they are necessary to be stated for the purpose of these appeals and (sic)undisputed are these : One Nur Mohammed alias Nur Meah claiming to be a mutwali in respect of a wakf created by his father Dost Mohamed, granted an istemrari lease of an entire village called Bamangao to : one Abdul Aziz in the year 1891. In the same year and some two months later Abdul Aziz granted a lease of an 8 annas share of the village in kayemi maurasi jote, to the predecessors of the plaintiffs. In 1898 litigation arose for declaration of title, administration of the estate, and accounts, etc., in the shape of suite which were instituted by some of the heirs of Dost Mohamed against the said Nur Meah and others. In these suits Abdul Aziz was a party, but the predecessors of the plaintiffs were not. The relief claimed as against Abdul Aziz was the setting aside of the lease granted by Nur Meah in his favour. The Trial Court dismissed the suits as against Abdul Aziz holding that the plaintiffs should, if so advised, institute separate suits for setting aside the lease : and as regards the other defendants the suits were decreed, the wakf created by Dost Mohamed being declared invalid. The decrees of the Trial Court were affirmed on appeal to this Court in 1902. When the appeals to this Court were pending, one Alamgir, son of Nur Meah, as the then mutwali of the wakf dispossessed the plaintiffs predecessors." In 1904 a common manager was appointed in respect of the estate. In 1915 proceedings under Section 145, Cr. P. C., were started between some of the plaintiffs predecessors and the common manager. Those proceedings, ended in a declaration in favour of the latter on the 21 May 1915. Thereafter on the 18 January 1917 the plaintiffs instituted the present suit for declaration of their kayemi maurasi jote right to the 8 annas share of the village and for recovery of possession thereof.

(2.) The Trial Court decreed the suit, to the extent of a 4 annas 17g. 8d. share being the share of Nur Meah in the village as one of the heirs of Dost Mohamed with possession thereof and mesne profits This decree has been modified by the lower Appellate Court which has reduced the plaintiffs share to 3 annas 2g. 8d. From the decree of the lower Appellate Court two appeals have been preferred, the appeal of the common manager being No. 2319 of 1923 and that the plaintiffs No. 362 of 1924.

(3.) In Appeal No. 2319 of 1923 the substantial question in controversy is that of limitation. It is urged on behalf of the appellant, the common manager, that the plaintiffs suit is barred upon the facts found by the Courts below and which are not now in dispute. This bar is sought to be established in this way : It is said that the plaintiffs must prove that they were in possession within twelve years of the suit, but that they have failed to do so as they were out of possession since 1305, it having been found by the learned Judge that the plaintiffs predecessors were dispossessed in 1305 by Alamgir claiming as mutwalli of Dost Mohamed's wakf, and Alamgir remained in possession till 1311 when the common manager took possession on-his appointment as such. The plaintiffs answer this contention by stating that after the institution of the proceedings under Section 145, Cr. P. C., there was an attachment under the proviso to Clause (4) of that section on the 23 September 1915 which lasted till the 21 May 1916 on which date the final order in those proceedings was passed, and that during this period plaintiffs predecessors as the rightful owners of their 8 annas share must be deemed in law to have been in possession thereof. The appellants challenge the correctness of this proposition and they further assert that even if its correctness be assumed, the plaintiffs were not the rightful owners who may be entitled to the benefit of it as their right had been extinguished in consequence of their having refrained from instituting a suit for regaining the possession which they had-lost when they were dispossessed by Alamgir and having remained continuously out of possession for more than twelve years, that is to say till the date of the attachment. To this the plaintiffs rejoin that when Alamgirs possession ceased and that of the common manager began in 1311, the law world presume a discontinuity and that there was an interval, however, momentary, daring which the plaintiffs, who at that date had admittedly not lost their right and were rightful owners, must be taken to have been in constructive possession. These contentions hive been developed in great detail on both sides, and various interesting questions have been discussed in the course of the arguments.