NIMAICHARAN DAS Vs. SURENDRA NATH GHOSH

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Fazal Ali, J., sitting in second appeal. The plaintiff brought a suit against the defendants for declaration of title and confirmation of possession. The defence raised was, firstly, that the property was debuttar and could not be sold in execration of the personal decree against the marfatdar and further that the suit was barred by reason of the provisions of Section 109, Ben. Ten. Act, there having been a decision under Section 106 of the said Act in a suit brought for rectification of entry in the record of rights. There was also a plea of limitation. The facts simply stated are that in the year 1908 the plaintiff's father, in execution of a decree which he had obtained against the father of defendants 1 to 3, had purchased the property in question. The father of defendants 1 to 3 against whom the decree was obtained, was marfatdar of a deity. The plaintiff obtained delivery of possession. In 1910 the Revisional Settlement khatian was published and the deity was still nevertheless recorded in possession. Therefore the plaintiff's father sued under Section 106, Ben. Ten. Act to correct the entry in the khatian. That suit was dismissed because it was not brought in time the defence being a point of limitation. In the current Settlement which was published in the year 1927 the name of the deity was again recorded as being in possession. The plaintiff having filed an objection under Section 116, Orissa Tenancy Act, which was dismissed because he could not prove his possession, as I have said, began this suit in 1928.

(2.) Two points were substantially raised before the learned Judge from whose decision this Letters Patent appeal lies. The learned Judge held that this suit was not barred under Section 109, Ben. Ten. Act, by reason of the earlier proceedings under Section 106 of the Act, because the two suits were based upon entirely different causes of action. Under Section 106 the suit was for rectification of the entry in the record of rights whereas the present suit was one for declaration of title and delivery of possession. The next point that was raised was the point held in favour of the defendants by the District Judge in first appeal. He had held that in the pleadings the plaintiff had not originally raised the plea of title by adverse possession. An examination of the pleadings--and indeed the learned advocate for the appellant before the learned Judge admitted--showed that the plea of adverse possession and title under that plea was distinctly raised. Furthermore, the issue was distinctly before the Munsif and I agree with the learned Judge of this Court that the Munsif was fully entitled to go into that plea and decide the case of adverse possession as he did in favour of the plaintiff. Secondly, I agree with the learned Judge of this Court that Section 109 does not create any bar to this suit by reason of the earlier suit under Section 106, not being in respect of the same matter. Both the points, therefore, taken before us in favour of the appellants fail and in my opinion this Letters Patent appeal must be dismissed with costs. Dhavle, J.

(3.) I agree. If (as is not disputed) the learned District Judge had not made an error of record and had not proceeded on the footing that the case of adverse possession had not been set up by the plaintiff in his plaint, it seems to me, having regard to his finding about possession, that he would have come to the same conclusion as the trial Court, namely continuous possession of the plaintiff notwithstanding attempts made by the defendants to interfere with that possession.