MAYEUDDI Vs. MAHAMMAD RAZZAB ALI

JUDGEMENT

(1.) The plaintiffs who are the lessees from one Kiran Babu, the purchaser of an estate at a revenue sale, brought the present suit for recovery of possession of the lands in suit on the ground that they formed parts of the estate. The defence was that the lands were not part of the estate purchased by Kiran Babu, namely, Estate No. 3842 of the Backergunj Collectorate but of the Remainder as shown in the thak map. They also pleaded limitation. There were various other points raised which need not be considered in this appeal as they have not been pressed. It appears that the estate was sold in 1888. In 1899 Kiran Babu sued the Defendants Nos. 1 to 19 and others for khas possession and took delivery of possession through Court on the 9 April 1907. It has been found by the learned District Judge that Kiran Babu remained in possession thereafter for a period of 15 days and was then dispossessed by all the defendants in this suit.

(2.) This suit was brought on the 10-4-1919, and it is, therefore, in time. But it is argued by the learned vakil appearing for the appellants that so far as Defendants Nos. 20 and 21 are concerned the plaintiffs suit is barred against them. These defendants are the co-sharers of the other defendants and they had an interest in the howla as well having inherited it from their common ancestor. In the suit Kiran Babu brought in 1899 these defendants were not made parties and, therefore, it is submitted that it must be presumed that they were in possession in 1907 when Kiran Babu took possession of the land and so the plaintiffs or their lessors were not in possession of the lands in suit as against them within 12 years. The finding of the Court below, however, does not support this contention. The learned District Judge found that Defendants Nos. 20 and 21 were not in actual possession at the time when the suit of 1899 was brought and that they came for the first time on the lands when Kiran Babu was dispossessed 15 days after he had obtained possession.

(3.) But it is contended that the Defendants Nos. 20 & 21 might not have been in actual possession in 1907 but they were in possession through the other defendants, their brothers, and since the decree was not obtained against them it must be presumed that their possession continued up to the date of the institution of this suit. This argument appears to us to be fallacious. If the Defendants Nos. 20 and 21 were in possession of the land in suit through their brothers, the dispossession of their brothers must be their dispossession as well. It cannot, therefore, be said that while their brothers were dispossessed they remained in possession. The finding of the learned District Judge, however, that they came for the first time to this land at the dispossession of Kiran Babu does away with the theory about these defendants being in possession at the time of the suit of 1899. The decision with regard to the question of limitation, therefore, must be upheld on the finding arrived at by the Court below.