GOBINDA CHANDRA CHAKRAVARTI Vs. PRAKASH NATH

JUDGEMENT

(1.) The only question In support of this appeal is a question of limitation.

(2.) Defendants Nos. 1 and 2 who are the appellants in this appeal contend that the plaintiffs suit was barred by reason of the provisions contained in Section 27 of Act VIII of 1869. In order to appreciate this contention it is necessary to look into the plaint and the cases put forward on behalf of the. respective parties. The plaintiffs in their plaint alleged that they were the holders of a mourasi jote which had descended to them from their father Ganesh Nath, that in the year 1320 corresponding to 1914 the plaintiffs father left the village for certain purposes of his own and that the principal defendants, namely, defendants Nos. 1 to 3 taking advantage of the absence of the plaintiffs father settled the lands of this jote with the other defendants, namely, defendant? Nos. 4 and 5, that subsequently the principal defendants instituted a suit against the defendants Nos. 4 and 5 and obtained a decree in ejectment as against them. The plaintiffs, therefore, alleged that it was necessary for them to have a declaration of their title to the jote and to have a decree also for confirmation of their possession therein, when the suit was pending the decree referred to above was executed by the defendants Nos. 1 to 3 against the other defendants, and upon that on the application of the plaintiffs, their plaint was amended and a prayer was included to the effect that they should be awarded a decree for khas possession. In the plaint two schedules of properties were given Schedule (A) being the lands in respect of which the declaration of title and recovery of possession were sought for and Schedule (B) being the lands which, it was alleged on behalf of the plaintiffs, had been given by them in mortgage to some third party. The plaintiffs case was that their father, at the time of leaving the village arranged with the defendants Nos. 4 and 5 to cultivate the lands of Schedule (A) in bhag, and that they had never abandoned the holding inasmuch as they were in possession of Schedule (A) lands through the defendants Nos. 4 and 5 and of Schedule (B) lands through the mortgagee who was in possession thereof.

(3.) Of the defendants defendant No. 3 did not appear nor the other defendants, namely, defendants Nos. 4 and 5, only defendants Nos. 1 and 2 entered appearance and contested the suit. Their case substantially was that the plaintiffs were not the holders of the jote which according to the plaintiffs comprised of the lands covered by Schedule A and B and they had no mourashi right therein but they were the tenants in respect of the lands covered by Schedule A and also of other lands which they held in, the village, that they or rather their father had as a matter of fact abandoned the tenancy without making any arrangement for payment of rent and that thereafter the principal defendants had taken khas possession of the holding and had settled it with the other defendants, namely, defendants Nos. 4 and 5.