JONAB SHEIKH Vs. SURJYA KANTA ACHARJYA CHOWDHRY

JUDGEMENT

(1.) The plaintiffs in these cases are the tenants of cue Nawab Ali Chowdhry, the owner of mouza Musuddi, while the defendants are the zemindar of Jhupna, a neighbouring village, and certain tenants, who claim title under him. The suit was to recover possession of certain lands as appertaining to the said mouza Musuddi, the cause of action alleged being dispossession by the tenant defendants in September 1894 a March, 1896 under colour of the possessory decrees obtained by them under Section 9 of the Specific Relief Act, on the 24 May 1894 and 9 September 1895, respectively. The main questions upon which the parties went to trial in the Court of first instance were, first, whether the plaintiffs claim was barred by the law of limitation and, secondly, whether the lands in suit appertain to mouza Musuddi, which, is said to belong to Nawab Ali Chowdhry, or to Jhupna belonging to Maharaja Surjya Kant Acharjya Chowdhry. The Munsif found that in regard to a portion of the lands claimed, the title was with the plaintiffs, but at the same time he held that the claim was barred by the law of limitation, inasmuch as the plaintiffs failed to prove possession within 12 years antecedent to the institution of the suit. The District Judge, on appeal, has taken the same view, but he has not gone into the question of title, which was determined in favour of the plaintiffs by the Munsif. We do not, however, gather from his judgment that he has considered the question-- which is a very important question as bearing upon the issue of limitation raised between the parties--whether the plaintiffs are entitled to rely upon the possession that they had between the time when they ousted the tenant-defendants and the time when the latter recovered possession under the decree passed under the Specific Relief Act. If the plaintiffs are entitled to rely upon such possession, as possession within the meaning of Art. 142 of the second Schedule of the Indian Limitation Act, then clearly they are not barred by the law of limitation. The question what may be the legal effect of a possession like that which the plaintiffs had after the ouster of the tenant-defendants, which led to the suit under Section 9 of the. Specific Relief Act, was considered by this Court in the case of Mamatzuddin Bhutan V/s. Barkatulla (1905) 2 C.L.J. 1. In that case the plaintiff, who was the rightful owner of certain lands, was wrongfully kept out of possession for less than 12 years by the defendants and succeeded in retraining possession without the help of the law, and remained in such possession for some tine, until evicted by the defendants in execution of a decree under Section 9 of the Specific Relief Act; and it was held that the cause of action occurred on the date of dispossession under the decree obtained under Section 9 of the Specific Relief Act, and the suit having been brought within 12 years from that date, was within time, and that the period between the regaining of possession by the plaintiff and his dispossession under the Specific Relief Act should inure to the benefit of the rightful owner, and not of the trespasser.

(2.) In the course of the judgment that was delivered in that case,, the Court in discussing the question of limitation that was raised made the following observations: We are, however, concerned with the present limitation law, which is in very different words from those that existed in the old Act. the words being the date of the dispossession or discontinuance of the plaintiff, if he be dispossessed, while in possession. And the question that we have to decide is whether, having regard to the words of the article, to which I have just referred, the plaintiff is within time, he having instituted the suit within 12 years from the time, when, upon the findings arrived at by the lower Appellate Court, he was dispossessed, while in possession,. under the decree obtained by the defendant, under the Specific Relief Act. It might here be mentioned that the lower Appellate Court has not dealt with the question of title. For the purpose of deciding the question that has been raised before us, we may assume the title to be with the plaintiff, and as found by the Court of first instance, he was in possession of the property in suit until, at any rate, the year 1887." And it was held that the possession of the plaintiffs during the interval between the date of the original ouster by the defendants and the recovery of possession by him was possession within the meaning of Art. 142 of the Limitation Act.

(3.) That Art. runs as follows: "For possession of immoveable property, when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession--12 years from the date of the dispossession or discontinuance." So that it seems to be clear enough that the plaintiff's cause of action really arose upon the date when, while in possession, they were dispossessed by the defendants under colour of the decree obtained under Section 9 of the Specific Relief Act. This view seems to have been also accepted in a later case: Protap Chandra Chatterjee V/s. Durga Charan Ghose (1905) 9 C.W.N. 1061. In that case, the plaintiffs, who were dispossessed by the defendants of some lands appertaining to their taluq, forcibly dispossessed the defendants, and were in possession, until the latter regained possession in execution of a decree under Section 9 of the Specific Relief Act. The plaintiffs brought the suit for recovery of possession within 12 years from their dispossession in execution of the said decree, but more than 12 years after the original dispossession; and it was held that the suit was not barred by the limitation. Maclean C.J., in the course of his judgment, observed .---"When the plaintiffs title is once established, his possession, however obtained, was possession within Art. 142 of the Limitation Act." Following these decisions, we are of opinion that the plaintiffs are entitled to avail themselves of the possession that they had during the interval between the time when they ousted the defendants and the time when the latter recovered possession of the lands in suit under the decree obtained by them under Section 9 of the Specific Relief Act. As we have already stated, this point does not seem to have been considered by the learned. Judge of the Court below. We therefore think that his decrees, as they now stand, cannot be supported. They must, therefore, be set aside, and the cases sent back to him for reconsideration having regard to the observations that we have just made. We need hardly point out to him that, with reference to the question of limitation that has been raised between the parties, the first matter that he should have to enquire would be whether the title in the lands is with the plaintiffs, for, if the title is with them, their possession during the interval of time to which we have already referred should be regarded as the possession of the rightful owner and not of a trespasser, and in this view of the matter there would be no limitation against the plaintiffs claim.