SATYENDRA NARAYAN BAGCHI Vs. SASHI BHUSAN CHOWDHURY

JUDGEMENT

(1.) The plaintiffs brought the suit out of which this appeal arises to establish their Lakheraj title to a certain tank. Both the lower Courts held that this Lakheraj title had not been proved but that the plaintiffs had succeeded in proving a title by adverse possession. It is contended on behalf of the appellants, first, that on the suit as framed the plaintiffs are not entitled to a decree, and, secondly, that the facts found are not sufficient to justify the conclusion that the possession of the plaintiffs was adverse.

(2.) As regards the first point, the learned Pleader for the appellants has addressed an able and interesting argument, taking us through a number of reported cases commencing with the case of Bijoya, Debia V. Bydonath Deb 24 W.R. 444 and ending with the case of Ram Chandra Sil v. Ramanmani Dasi 36 Ind. Cas. 890 : 20 C.W.N. 773 at. P. 785. We do not consider it necessary to discuss the point how far the plaintiffs can succeed on a title by adverse possession that has not been expressly set up in the plaint, because it appears to us from a reading of the plaint in this case that the plea of title by adverse possession was included in the statement of facts on which the plaintiffs based their claim for title, and it also appears that the issue of the plaintiffs title by adverse possession was fought out on its merits in the first Court. Though such an issue was not distinctly framed, it appears from the judgment; of the first Court, in joining the issue of limitation to the issue of Lakheraj title, that the parties clearly understood that the plaintiffs claim to title by adverse possession was in issue.

(3.) As regards the second point, although the lower Courts have not distinctly stated on what ground they held the plaintiffs, long possession to be adverse, it appears that in those Courts the case set up by the defendants was, not that the plaintiffs had been in permissive possession, but that they had not been in possession at all. The defendants tried to prove that they themselves had been in actual possession of this tank. The finding that the plaintiffs have been in possession for generations and that the defendants have never been in possession must be taken as conclusive in second appeal; and on those findings, we cannot see that any other inference could be drawn except that the plaintiffs possession was adverse.