ABDUL GAFUR CHAUDHURY Vs. ABDUL JABBAR MIA

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff prayed for a declaration of his zemindari title to four-annas share in the land described in the khatian mentioned in the plaint; that his possession thereto may be confirmed; and that the settlement khatian might be declared wrong and fraudulent. There was a. further prayer that if the Court found that the plaintiff was out of possession, then possession of the said lands might be given to the plaintiff after declaration of title. His allegations in the plaint were that during the last Settlement operations, which took place in 1907, the lands in suit were recorded in the name of the principal defendants either through the fraud of the principal defendants or through the mistake of the Survey Amin, but that the lands were still in his possession. He then proceeded to state that the lands being at a great distance from his house, and near to the house of the principal defendants, the father of the principal defendants was entrusted with the task of recording; and on account of their fraud the plaintiff could not know anything of the said record, and that he came to know of the incorrect entry in the Record of Eights in Falgoon 1323 B.S., corresponding to February 1919. The case of the defendants was that they were tenants in respect of the lands under the plaintiff and that they had been in possession for more than 12 years. The first Court dismissed the plaintiff's suit holding that the plaintiff was not in possession and that the Defendants Nos. 1 and 2 were in possession. He disallowed the plaintiff's prayer for khas possession on the ground that he had not been in possession within 12 years prior to the institution of the suit. He, therefore, held that the plaintiff's suit was barred by limitation.

(2.) On appeal this finding was reversed by the District Court. The District Court found that the plaintiff was still in possession and that defendants have never to the knowledge of the plaintiff asserted their adverse title and possessed the disputed lands for more than 12 years prior to the suit. He, therefore, found that there was no complete ouster and that the suit was not time barred by the 12 years rule and he decreed the plaintiff's suit in full with, costs.

(3.) Defendants Nos. 1 and 2 have appealed to this Court. It is contended on their behalf that the plaintiff's suit is barred by limitation. Mr. Roy Choudhury, who has appeared for them, contends that Art. 120 and not Art. 144, which is apparently the article applied by the lower appellate Court, is the Art. that applies. He then contends, that limitation runs from the date of the final publication of the Record of Eights; that the final publication was in 1907 and hence the suit is clearly barred by limitation. In support of his contention he has relied on the decision in the case of Rajani Nath Pramanik V/s. Manaram Mandal [1919] 23 C.W.N. 883. Mr. Roy Chowdhury contends that the period of limitation must run from the date of the publication of the Record of Rights as there is no allegation in the plaint that the plaintiff's possession has in any way been disturbed by the defendants. Hence the only cause of action is the incorrect entry in the Record of Rights. The decision to which he has referred us undoubtedly lends support to the contention of the learned advocate. The facts of that case were very similar to those of the present case. In that case it was also pointed out that the plaintiff did not allege that his possession had been in any way disturbed or threatened to be disturbed by the defendant. It is quite clear from the plaint in the present case that the plaintiff bases his cause of action on the Record of Rights and on nothing else. There is no suggestion anywhere in the plaint that his possession has been in any way threatened or disturbed by the defendants. Therefore his only cause of action is this entry in the Record of Rights. If his cause of action dates from the date of the final publication of the Record of Eights then it is quite clear that the suit is barred by limitation.