NISI KANTA DAS Vs. BROJENDRA NATH PAL

JUDGEMENT

(1.) This appeal arises out of a suit which WAS instituted by the plaintiffs for declaration of title to and for confirmation of possession in or, in the alternative, for recovery of possession in respect of, an eight annas share in a tank and its bank. The suit was dismissed by the trial Court, that Court holding that the plaintiffs had failed to make out their title and that they had not been in possession, at any time, of the property in suit before the suit was instituted. The lower appellate Court, on an appeal being preferred by the plaintiffs from the aforesaid decision, reversed the said decision and decreed the suit in plaintiffs favour holding that the plaintiffs had succeeded in proving their title and also that the suit was not barred by limitation. The plaintiffs ease, shortly stated, was that the tank in question belonged originally to two brothers Nilmani Ray and Madhuradhan Say in equal shares. The plaintiffs claimed to have acquired the eight annas share of Madhusudhan Ray and Nilmani Ray's share, according to the plaintiffs, devolved upon the contesting defendants. The arguments that have been advanced in support of this appeal which has been preferred by the defendants may he classed under two heads. The main arguments have been directed toward the finding of the learned Additional District Judge on the question of the plaintiff's title. It would be tedious to set out in detail all that has been urged so far as this branch of the appellants contention is concerned. It has been urged, for instance, that the attention of the lower appellate Court was directed more to the question of the superior right in the tank and that the findings that have been arrived at by that Court in plaintiffs favour really related to the said superior right, while, in point of fact, the subject matter of the suit was the jote right in the said property. It has been also urged that certain important documents or rather the bearing of them, so far as the present case is concerned, have not been properly considered by the learned Additional District Judge and in this respect reference has been made to such documents as Exs. N1 and D1. It has been also contended that there is an inconsistency in the fin lings of the learned District Judge so far as Exs. 7A and D2 are concerned; because while the learned Judge has said that D2 does not relate to the property in suit, he has relied upon Ex. 7A which gives the same pottah number of the property as D2 contains.

(2.) These and various other matter have been brought to our notice but having given to all these matters the consideration that they deserve, we are of opinion that the learned Additional District Judge has very elaborately discussed the bearing of all the relevant documents and arrived at a conclusion with which it is not possible for us to interfere in second appeal. As regards the jote right, it is clear that there are some documents which deal with the said right and the findings of the learned Additional District Judge, so far as this right is concerned, cannot be said to have been based, on no evidence. As regards D1 and N1 they have been specifically referred to is the learned Additional District Judge's judgment and as regards 7A and D2, the argument proceeds merely upon the fact that the same pottah number is given in. the two documents : while, on a careful consideration of these documents, it will be clear that there are other matters mentioned which go to show that the properties to which they relate are not identical. This contention, directed against the question of the plaintiffs title, must, therefore, be overruled. The finding that the plaintiffs title to the eight annas share of the tank and its banks will accordingly stand.

(3.) The other arguments that have been advanced relate to the question of limitation and generally to the finding of the learned District Judge as regards the question of the plaintiffs possession. The learned Additional District Judge has observed in his judgment that the record-of-rights was finally published on the 27 October 1910, and, inasmuch as the suit was instituted on 27 October 1922, it was not time barred. He has made the following further observation in his judgment: I believe plaintiffs evidence of possession up to the final publication of the record- of-rights. It is true that the defendants are in possession since the final publication of the record-of-rights as told by some of the plaintiffs witnesses.