PULIN BEHARY MANDAL Vs. RAMA CHARAN HALDAR

JUDGEMENT

(1.) THIS is a Letters Patent Appeal by the defendant against the decision of my learned brother Henderson J. It arises out of a suit for possession of three plots of land, one being a homestead and the other two being paddy lands. The subject-matter of dispute in this Letters Patent Appeal is the paddy lands, as it has been found that the plaintiff's claim so far as it relates to the bastu land is barred by limitation. The only point for determination in this appeal is whether the plaintiff's claim in respect of these two plots is barred by limitation. It is argued on behalf of the appellant that in view of the facts of this case the provisions of Art. 138, Limitation Act, are attracted to this case. I am unable to accept this contention. That Article applies to a case where the judgment-debtor was in possession at the date of the sale. Here admittedly the defendant was not in possession at the time when the plaintiff's predecessor- in-interest purchased the property in execution of a rent decree against the defendant. At that time certain Baidyas were in possession of these lands as statutory mortgagees under Section 171, Bengal Tenancy Act. Art. 138, Limitation Act, therefore does not apply to this case. In view of the finding of fact that the defendant came into possession only in 1933 the suit is also not barred under Art. 144. So far as Art. 136 is concerned, the starting point of limitation is the time when the vendor is first entitled to possession. In view of the fact that the Baidyas were in possession of the properties as statutory mortgagees under Section 171, Bengal Tenancy Act, the plaintiff's vendor was not entitled to possession before the money deposited by the Baidyas under that Section was realized from the usufruct of the properties or by any payment made by the judgment-debtor or any persons interested in the holding. As therefore the plaintiff's vendor was not entitled to possession of the properties before the year 1933 the plaintiff's suit is not barred under Art. 136, Limitation Act. The result therefore is that this appeal fails and is dismissed with costs. S.K. Ghose, J.

(2.) I agree.