BIJOY GOPAL MUKERJI Vs. SRIMATI KRISHNA MAHISHI

JUDGEMENT

(1.) The only question on this appeal is whether the suit out of which it arises is barred by limitation. The appellants (plaintiffs in the suit) are four of the reversionary-heirs of one Chandra Bhusan Mukerji, who died childless. so long ago as the year 1832. He was succeeded by his widow Soyamoni Debi, who died on the 21 October 1893. The principal defendants to the suit or their successors in title, being respondents 1 to 68, are in possession of the property in suit and claim to be entitled thereto either directly or by derivative titles under an ijara, or lease, of the whole of Chandra Bhusan's property for a term of sixty years, executed by Soyamoni on the 7 September 1863. The other defendants or their successors in title, being the last three respondents, are the other reversionary heirs, who have not joined the appellants as plaintiffs. By their plaint the appellants prayed a declaration that the ijara in question and all the rights subordinate thereto mentioned in the plaint, have become inoperative as against the appellants since Soyamoni's death and for khas possession of the disputed properties with mesne profits.

(2.) The Subordinate Judge, on the trial of certain preliminary issues, held, on the authority of Sheo Shankar Gir V/s. Ram, Shewak Chowdhri (1896) I.L. R, 24 Cal. 77 that Art. 91 of Schedule 2 to the Indian Limitation Act had no application to the present suit and that it was governed by the twelve years limitation prescribed by Articles 140 and 141. No limitation therefore applied to the suit and he found the issue as to limitation in the appellants favour. At the subsequent trial of the other issues on their merits, the Subordinate Judge's judgment was in favour of the appellants, except as to certain defendants and he made a decree, dated the 28 November 1898, in accordance with his findings.

(3.) No less than six appeals against the decree of the Subordinate Judge were presented to the High Court of Calcutta and on the hearing of the appeals the Court reversed the finding of the Subordinate Judge on the preliminary point as to limitation, holding that Art. 91 was applicable to the case and that consequently the suit was barred and must be dismissed with costs.