SARAT CHANDRA MUKHERJEE Vs. NERODE CHANDRA MUKHERJEE

JUDGEMENT

(1.) This appeal has arisen out of a suit for declaration of the plaintiffs right to use the land described in the plaint as a common passage way and for a decree against the defendant Sarat Chandra Mukherjee for the removal of 2 tin sheds erected by him thereon and for damages. The land in suit was included in the premises described as 134 Jan Bazar Street in a partition between those parties along with others in 1901. The total area of these premises was found to be 5 bighas and 16 cottas. Of this 9 cottahs was deducted as common passage leaving 5 bighas 7 cottahs to be divided. The learned Judge has decided that the land in suit is included within this 9 cottahs of passage land (as shown in map No. 5) annexed to the plaint separating the four parts into which the premises were then divided being a portion of the land separating part 1 from Part 4 of that award running east and west and terminating on the west in Grant Street.

(2.) By an award in a subsequent partition suit between the plaintiffs and defendants in 1917. Part 1 of the award of 1901 was divided into 6 blocks (vide map No. 1) blocks 2 and 3 coloured red on the map being given to the plaintiffs, blocks 1 and 4 to defendant 1 and blocks 5 and 6 to defendant 2. The plaintiffs allege that in 1925 the two tin sheds in question were erected by defendant 1 on the common passage in extension to the north of his building on block 1, the eastern one measuring 14 -6" x 5 -9" and the western one 25 -l" x 6 -ll". The, finding of the learned Judge that the land on which those sheds were erected was a common passage under the partition of 1901 and was also shown as such in the partition of 1917, is not now seriously disputed between the parties, and defendant 1 appellant has mainly disputed the decree which the plaintiff obtained for the declaration asked for and the removal of the sheds, on the ground of limitation.

(3.) The appellant maintains that since, admittedly, the sheds were erected as long ago as 1925, whereas this suit was not instituted until 21 August 1931, the suit is time barred inasmuch as it is a suit to which the provisions of Art. 32, Lim. Act, apply. Even if it be taken that the suit comes under Art. 120, Lim. Act, the onus was on the plaintiff to show that the period of six years under that Art. was not exceeded and that onus he has failed to discharge. In support of their contention that Art. 32 applies, the appellants have cited a number of decisions of the Lahore High Court in which Art. 32, Lim. Act, was held to apply where co-owners had set apart land for a common purpose and the defendant had diverted it to an unauthorised purpose and so excluded the plaintiff from using it for the common purpose. These decisions were however overruled in the Full Bench case of Mastan Singh v. Santa Singh 1933 Lah 705, in which it was stated by Tek Chand, J. that in suits of this kind the real cause o? action is the ouster of the plaintiff from property jointly owned by him and the defendant and reserved for their common use for g specific purpose and not the perverted user of such property by the defendant. In such cases the presumption of law is that the possession of one is the possession of all and it was not the intention of the legislature to reduce the period of limitation for such suits to two years simply because the attack by the defendant on the plaintiff's title was accompanied by a perversion of the user of the property from its original specific purpose.