GAJANAND MARWARI Vs. NONIDH LAL

JUDGEMENT

(1.) This is an appeal from the appellate decree of the Subordinate Judge of Monghyr in which he reversed the decision of the Munsif of Beguserai. The suit was brought for possession of a house and a small piece of land in Beguserai, and the only material question we have to decide is whether the suit is barred by limitation. The history of the events that have led to this suit so far as they are material to this decision are these. Baldeo, who was then the owner of the property, on September 24, 1902 mortgaged a certain amount of property including that in dispute (the property with which we are concerned being note right) to one Gopi Lal for Rs. 12,000 odd. In 1915 a suit was brought by the heirs of the mortgagee against the heirs of the mortgagor, and that suit was decreed on December 12, 1916. Thereafter the heirs of the mortgagee assigned the decree to the plaintiffs. The plaintiffs executed the decree and purchased the mortgaged property at the mortgage sale on March 22, 1922. When they attempted to take possession they found themselves resisted by the defendants who are third parties altogether. Proceedings for summary decision of the matter were taken under Order XXI, Rule 9 but were dismissed, the decision being in favour of the defendants that they were in possession on their own account under a bona fide, claim of right. Therefore in 1926 the plaintiffs brought a suit under Order XXI, Rule 103, for the ordinary declaration and recovery of possession. It was considered at the time by the Court that the plaintiffs would have to pay court-fees on that part of the claim which amounted to a prayer for recovery of possession--an erroneous view but the plaintiffs did not pay the court-fees. The result was that when the plaintiffs suit come on before the Munsif he disallowed the plaintiffs claim excepting so far as it related to the declaration of right to possession by the plaintiffs, and based his refusal to allow recovery of possession upon the fact that the court-fees which he considered necessary had not been paid. The lower Court of appeal dismissed the suit entirely. But when the matter came on before the High Court, the ultimate result was that the decree of the Munsif was restored, so that they obtained a mere declaration but the decision under Order XXI, Rule 99, was set aside. The plaintiffs then went to the Subordinate Judge again and asked for a writ of possession and for delivery of possession to them of the land in suit. The writ was properly issued and was served on September 21, 1930. Subsequently, considering the form of the serving peon's report to be unsatisfactory the plaintiff applied for re-issue of the writ. Their application was opposed by the defendant Gajanand Marwari. The Subordinate Judge considered the matter and decided on September 19, 1932, that on the original delivery of possession considering the report of the peon and the evidence that was brought before him, he considered that the plaintiffs had actually obtained possession on the earlier occasion. He took into account the contention that there were three items of the property, that is to say, a well, a house and some trees of which it was said that the plaintiffs had not actually obtained possession, but he held as a fact that as far as the entire property was concerned, possession had actually been obtained by the plaintiffs. He further held that the further dispossession complained of by the plaintiffs as against the defendants was dispossession by the defendants after they had been put into possession by the peon and rightly held in the circumstances that a fresh taking of possession by the defendants after the plaintiffs had come into possession under a writ of delivery of possession was a matter for further litigation. Now the fact is that in subsequent proceedings throughout, that decision of the Subordinate Judge has been misunderstood. We have examined it carefully, and we have no doubt that that was the effect of the Subordinate Judge's decision in the clearest possible terms. Therefore finding themselves out of possession again, the plaintiffs begun the present suit for possession. The Munsif and the Subordinate Judge who heard this case misunderstood the previous order of the Subordinate Judge completely, and they were under the impression that the possession had not actually been obtained under the first delivery of possession but merely that some kind of symbolical possession had been obtained and actual possession had not been obtained. Had they examined the judgment of the Subordinate Judge when he then delivered his decision on this matter they would have seen that that matter was for ever closed as between the parties. They proceeded to deal with the matter afresh and reached a decision that possession had not been obtained, and having regard to the Subordinate Judge's first decision and the fact that the matter was closed between the parties as res judicata the reasoning upon which their decision has been granted is not material, nor is it necessary for us to examine it.

(2.) Now we come to the case of the defendants. The defendants say that they had been in possession by a grant from the original landlord and they dated the settlement from the year 1919. The lower Appellate Court held that in fact the defendants had been in possession but the matter of the alleged settlement had been decided against the defendants in the earlier suit of 1926. The objection has been taken to this suit on the ground that it is barred by limitation. The objection was, however, dismissed by the Subordinate Judge. At the time of the original suit the defendants had, if their possession be taken as from the year 1919, only been in possession for less than seven years. The former suit was begun in the year 1926 and considered as a suit for possession as indeed it was and was brought within time. The plaintiffs by bringing the original suit did all in their power to recover possession, and the time from t he commencement of the suit of 1926 ending up with the decision of the High Court delivered in 1930 must be excluded from the period of limitation and the principles of such an exclusion of time were fully explained by the Judicial Committee of the Privy Council in the case of Srimati Nrityamoni Dassi V/s. Lakhan Chunder Sen 20 C.W.N. 522 : 33 Ind. Cas. 452 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 : 43 C. 660 : A.I.R. 1916 P.C. 96(P.C.). If this period be excluded, then it is clear that whatever point of time as the start of limitation be taken in this particular case, the present suit is brought within time. Moreover, under the decision of the Subordinate Judge of September 19, 1932, when the plaintiffs applied for the issue of a further writ of possession after the service of the first writ, the holding by the Subordinate Judge as a fact between the parties that the possession asserted by the defendant only took place after the original writ of possession in favour of the plaintiffs was given effect to, establishes a date of possession by the plaintiffs which makes the present suit well within time. Inasmuch as the arguments have largely proceeded upon a wrong assumption as to what the proper interpretation of the learned Subordinate Judge's decision was, no other argument becomes really necessary, for the consideration of the merits of this appeal. The present suit on any basis is a suit rightly brought for possession. The earlier decision is not a decision which makes the question of present possession a matter of res judicata, because delivery of possession was made as a consequence of the decree in that suit, and it was held that the subsequent possession by the defendant originated subsequently to service of that writ. There can be no question, therefore, of res judicata on the basis that this matter had been litigated or might have been litigated in the earlier suit. These two points are really the only material points in this appeal, and in my opinion, they have no substance. On the argument which proceeded on the erroneous notion as to what the Subordinate Judge's decision had been, a number of interesting and important questions arose which it is not necessary to deal with specifically, but I would like to express my appreciation of the extremely clear and very concise argument addressed to us by Mr. Mitra on behalf of the plaintiffs The result is that the appeal fails, and the appellant will pay the costs throughout. James, J.

(3.) I agree.