MOHIM CHANDRA BASAK Vs. KANAILAL SAHA

JUDGEMENT

(1.) Two points have been pressed by the appellants in this appeal first that the Courts below have admitted certain documents which are not admissible in evidence in support of the plaintiffs title and, secondly that the Courts below should have found that the plaintiffs suit was barred under Art. 3, Schedule 3 to the Bengal Tenancy Act. The facts are that the holding in suit belonged to defendants 1 to 4 in their raiyati right. It was mortgaged with the plaintiff in 1910. He brought a suit upon the mortgage and purchased it in execution of the mortgage decree in March 1923. The present suit was filed in September 1923 for possession of a plot of land which according to the plaintiff formed part of the raiyati of defendants 1 to and according to the contesting defendants was within their jote in which they had a fractional maliki right. Both the Courts have decreed the plaintiff's suit and defendants 5 to 8 appeal.

(2.) With regard to the first ground the lower appellate Court has relied upon three documents relating to neighbouring plots in which the boundaries described are in favour of the plaintiff. They are Exs. 5, 2 and 7. As regards Ex. 2, the objection is not pressed. Ex. 5 is a kabala executed in 1309 in favour of the appellants. The land covered by this kabala lies to the West of the disputed land. This document is admissible inasmuch as it shows that the appellants accepted the description of the boundary as correct as their conduct. It can be proved as inconsistent with the fact in issue in this case. Ex. 7 is a kobala executed in favour of one Jadub Chandra Saha by the former owner in respect of the land immediately to the north of the disputed land in which the boundary mentioned was as Brindaban's Palan Brindaban being one of the mortgagors. This Jadub Chandra Saha has been examined in this case and he has proved the kabala and the correctness of the boundaries therein, so no objection can be taken to this document. Ketabuddi V/s. Nafar Chandra . We accordingly think that there is no error of law committed by the Court below in admitting these documents in finding title with the plaintiff's mortgagor.

(3.) The next question relating to limitation is one of some difficulty which has arisen due to the findings of the lower appellate Court which are not very clear. The appellants alleged in their written statement that they were in possession of this land as included within their jote and in their maliki right. The Court of first instance disposed of the objection on the ground of special limitation by observing that the appellants were fractional maliks and therefore Article 3, Schedule 3 to the Bengal Tenancy Act did not apply. This view has not been attempted to be supported before us by the respondent. Art. 3 does not speak of dispossession by the landlord. It prescribes the period of two years within which a suit by a raiyat or an under raiyat must be brought for recovery of his holding. But the cases have interpreted it to mean that as the Bengal Tenancy Act is an enactment relating to the relationship between the landlord and tenant the suit in which that article applies must be a suit by the tenant against his landlord. There is nothing in the law to show that such a suit must be against the entire body of landlords. The lower appellate Court however has based its decision upon a different ground. The settlement operation in this case began in 1909. The Record-of-Rights was published some time after (but we have not got the exact date) which shows that the appellants were in possession of this disputed land in their jote right. If that entry be accepted as correct the suit of the plaintiff will be barred by adverse possession under the Limitation Act. But the learned Subordinate Judge thinks that the entry in the Record-of-Rights was the result of collusion between the appellants and defendants 1 to 4. He presumes that the entry was made evidently in 1316 after the execution of the mortgage. We do not know upon what materials he has based his opinion but if the entry was made in 1316 it might have been made before the execution of the mortgage which was executed in Falgun 1316. The learned Subordinate Judge records his finding in these words: I am satisfied that the entry was made after the execution the mortgage with, the object I have already stated. So the entry of the appellants into the land was not ad verse-either to defendants 1 to 4 or the plaintiff or the appellants did not set up a hostile title openly... I am also inclined to accept the evidence of the plaintiffs witnesses that the appellants began to possess the land 8 or 9 years before the institution of the suit.