SIVA PROSAD SAW Vs. BHADRAMONI DASSI

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of possession of certain properties on establishment of the plaintiff's title thereto and for certain other reliefs. The properties in suit comprised a large number of cadastral survey plots of which one only, namely, cadastral survey plot No. 521, need be specially mentioned in view of the contentions that have been urged in connexion with the appeal. The trial Court decreed the suit in part declaring the plaintiff's title to-plot No. 521 and directed that the plaintiff would recover possession of the said plot from the defendants on payment of Rs. 100 to the latter as compensation An appeal was preferred by the plaintiff, and a cross-appeal by the defendants; from the decision of the trial Judge. The learned Additional District Judge has decreed the plaintiff's appeal and dismissed the cross-appeal, thereby decreeing the plaintiffs suit in full. The defendants have thereupon preferred this second appeal.

(2.) It is necessary to state only a few facts in order to appreciate the grounds that have been urged in connexion with this appeal. The lands in suit are said to appertain to a jote of one Gurai Bera. Gurai Bera died leaving a widow named Susila and two daughters, Kamini Dasi and Bhadramoni Dasi, the latter being the plaintiff in the present suit. After the death of Susila, Kamini and Bhadramoni jointly possessed all the properties, and while they were thus in possession, defendants 1 and 2 having got a decree for money against the husband of Kamini and in execution thereof put up some of the properties alleging that they belonged to Kamini's husband and purchased and took possession of the same some time in 1907. In 1909 the plaintiff instituted a suit for declaration of title to and recovery of possession of a half- share in the properties that had been purchased and taken possession of in the aforesaid way by defendants 1 and 2. This suit included all the lands covered by the present suit except C.S. dag No. 521. The cause of action in that suit was said to be a dispossession that had been effected by defendants 1 and 2 in 1314, that is to say, sometime in 1907. This suit eventually terminated in a decree by which the title of Bhadramoni to a half share in the properties was declared and possession thereof was decreed in her favour. The present suit was instituted by Bhadramoni after the death of Kamini which took place in Bhadra" 1330, the plaintiff's allegation being that as the surviving daughter of her father she became entitled to Kamini's share and went to take possession of the same but was resisted by the defendants. The grounds urged on behalf of the appellants are mainly three.

(3.) The first ground is to the effect that the question of limitation had not been adequately dealt with by the Courts below. It is urged that although a suit of this description would ordinarily be governed by Art. 141, Schedule 1, Lira. Act, in view of special features of this case the article that is to be considered applicable is Art. 144. It is said that the plaintiff, after the purchase which defendants 1 and 2 had made in 1907 was aware of the fact that the said defendants had been in adverse possession of the share of Karnini in the properties in suit and that inasmuch as the said defendants being thus in possession for a period of over 12 years had acquired an indefeasible right to that share the plaintiff has no right to institute the present suit, because what-ever right Kamini had in the property had, before her death, been extinguished by adverse possession on the part of the defendants. In support of this contention, much reliance has been placed on the decision of the Judicial Committee in the case of Vaithialinga Mudaliar V/s. Srirangath Anni .