UPENDRA NATH ROY Vs. JITENDRA NATH KUNDU CHOUDHURY

JUDGEMENT

(1.) The respondents Nos. 1 and 2 instituted a suit in the Court of the Munsif at Howrah for declaration of their title to certain lands and for recovery of arrears of rent from the appellant. The plaintiffs case shortly stated is as follows: The disputed land was originally niskar land of Khetra Mohan, Manik Chandra and Nafar Chandra. One Puran Chandra held these lands as a tenant under them. Bijoy Keshab, the predecessor in interest of the plaintiffs, purchased the eight annas share of these lands, from Khetra and Manik and used to realise rent of Re. 1-4-0 in his share from Paran. Bijoy Keshab subsequently acquired 16 annas interest in the disputed land on Ashar 17, 1300, and raised rent of Paran to Rs. 6. Paran died leaving his son Gour. Bijoy Keshab instituted a rent suit against Gour in the year 1904, obtained a decree on contest and in execution of that decree purchased the lands on November 28, 1911, and got possession of the same though Court. Priya Nath, the father of defendants Nos. 2-4 there after took settlement of the lands from Bijoy Keshab at a rental of Rs. 7-8. On the death of Priya Nath, the defendants Nos. 2-4 are in possession of the disputed land. Bijoy Keshab died leaving the plaintiffs as his heirs. The plaintiffs brought vent suit No. 339 of 1923 against the defendant Nos. 2-4 which was decreed in the first Court and was dismissed on appeal on September 2, 1926. In the course of that rent suit, the plaintiffs came to know for the first time that although Gour had no niskar right in the disputed land, he transferred Me same to the defendant No. 1 alleging that the lands were niskar. The plaintiffs Case is that defendant No. 1 has simply purchased the tenancy right of Gour, On these allegations the plaintiffs prayed for declaration of their title to the lands, and for recovery of arrears of rent from the defendant No. 1.

(2.) The defence of the defendant No. 1 was that the disputed land was niskar land of Paran and that the plaintiffs suit was barred "by limitation. The trial Court held that the plaintiff had succeeded in proving their niskar right to the disputed land but dismissed the suit on the ground that it was barred by limitation.

(3.) On appeal by the plaintiffs to the lower Appellate Court the learned Judge found (1) that defendant No. 1 was never in actual possession of the land; (2) that Priyanath was in possession of the land by actual cultivation under Gour before he sold his right to defendant No. 1; (3) that defendant No. 1 never gave notice of his purchase or possession by realisation of rent from Priyanath or his heirs to the plaintiffs; (4) that defendant No. 1 never publicly and notoriously asserted Priyanath's possession to be his possession and that his possession through Priyanath and his heir was secret; (5) that plaintiffs came to know of the claim of defendant No. 1 for the first time in 1923, i. e., within 12 years from the date of the suit when the heirs of Priyanath set up defendant No. 1 as their landlord ; (6) that defendant No. 1 never asserted his possession as possession in rent-free title to the knowledge of the plaintiffs.