SHEIKH ALAM Vs. ATUL CHANDRA ROY

JUDGEMENT

(1.) This appeal arises out of a suit for possession. The trial Court decreed the suit. On appeal the learned Judge has affirmed the finding of the trial Court on the question of plaintiffs title. He has, however, dismissed the suit on the ground that it is barred by limitation under Article 3, Schedule 3, Ben. Ten. Act. Hence this second appeal by the plaintiffs.

(2.) The only point for determination in this appeal is whether the suit is barred by special limitation. The facts which are material in this connection are these:

(3.) The disputed lands appertain to the occupancy holding of one Meajan under defendants 1 to 5 and some other persons. Meajan died leaving behind a widow Jokarjan, a son Tukani and three daughters Matijan, Rabjan and Mamjan. Plaintiffs 1 to 5 and 9 to 13 claim title to the disputed lands on the basis of certain usufructuary mortgages executed by Meajan and after his death by Tukani. The other plaintiffs are Rabjan, Mamjan and the husband of the deceased Matijan. Defendants 1 to 5, who are co-sharer landlords of the holding purchased the right, title and interest of Tukani's heirs in execution of a money decree on 8 August 1922, and took delivery of possession through Court under Order 21, Rule 95, Civil P. C., on 5th February 1923. On 29 May 1923 a proceeding under Section 145, Criminal P. C., was started, and by an order of the Criminal Court passed on 9 November 1923 defendants 1 to 5 were declared to be in possession. After this one of the defendants brought a criminal case under Section 426, I. P. C., against the plaintiff Anam who was in possession of the disputed lands on behalf of all the plaintiffs. This case was compromised on 4 April 1924. In the petition of compromise it was admitted by Anam that the lands were in possession of defendants 1 to 5. The present suit was instituted on 26 February 1926.