PANCHU KAPALI AND RAJARAM KAPALI, MINORS, BY THEIR GRANDMOTHER NEXT FRIEND AND GUARDIAN BIJOYA KAPALI Vs. JAJNESWAR MAJHI AND ROHINIDASYA WIDOW OF ABHOY CHARAN MAJHI

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of the plaintiff s title to 5 cottas of land and for possession thereof. Both Courts, after deciding in the plaintiffs favour on the facts at issue, have held that the suit must be dismissed as being barred by limitation under Article 3, Schedule III of the Bengal Tenancy Act.

(2.) The facts as found are as follows: The plaintiffs father on the 7th Magh 1315 B. S. was granted a potta by (be defendants. At the time of granting this potta the defendants were in possession of 5 cottas of the land and obtained permission of the plaintiffs father to remain in possession during three months to enable them to remove their huts on the land. But after this period had elapsed, the defendants did not remove their huts and remained in possession adversely to the plaintiffs father and afterwards to the plaintiffs.

(3.) It is first contended that the special limitation of the Limitation Act did cot apply, because there is no evidence on the record to prove that the plaintiffs were raiyats, This point was not taken in the grounds of appeal to this Court. In both the lower Courts it appears that there was never any dispute that the plaintiffs status was that of raiyats and I, therefore, refused to allow this point to be urged before me.