KHUDIRAM OJHA Vs. SMAMODEBALA DEBI

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff who brought the suit for a declaration of title and recovery of possession in respect of certain lands appertaining to khewat No. 47 and khewat No. 46. Of the two khewat lands, No. 46 was exclusively the property of late Sadhu Debya, the widow of Ashirbad Missir, the last male holder. Khewat No. 47 is the shamilat between khewat 46 and khewat 3. Khewat 3 was the property of Biraja and was recorded in her name in the latest record of rights.

(2.) In this case, two names occur very frequently namely that of Mohini and Biraja. It should be remembered that they are related as mother-in-law and daughter-in-law. Khewat No. 3 belonged to Biraja who inherited it from her husband who was son of Mohini and her husband Lallu Missir. The plaintiffs claimed these properties in suit as reversioners of Ashirbad on the death of Sadhu Debya about he time of whose death there is some controversy which will be dealt with presently. The plaintiffs case is that on the death of Sadhu Debya, they related as they were to Mohini, entrusted her with its management. In their ignorance, the property was sold in execution of a certificate decree obtained against Mohini and purchased by defendant 1 who is Mohini's daughter. An allegation of collusion between Mohini and defendant 1 had also been made by the plaintiffs, but has not been believed by the Courts below. The point has not been re-agitated in this Court, it being a question of fact. The defendant repels the plaintiffs claim on two grounds, namely, that they have not been in possession of the properties within 12 years of the suit, and secondly that Mohiiy by her adverse possession since after Sadhu Debya's death had acquired a title to the disputed lands by the time they were sold in certificate proceedings and in those circumstances defendant 1 acquired a good title to the properties in suit. Lastly it was contended that in any view defendant I was entitled to tack her possession with that of Mohini and defeat the plaintiffs claim as barred by limitation. The Courts below have come to the finding that Sddhu Debya died in the year 1328 which is equivalent to 1921-22 if not earlier. They have also found that since then Mohini Debya was openly and continuously in adverse possession of the properties till the time of the certificate sale which took place on 6 August 1934. As I have already stated, it is at that sale that defendant 1 had purchased. The Courts below have, therefore, held that defendant 1 acquired a good title to the disputed properties. It is undisputed that defendant 1 has been in possession since delivery of possession through Court which took place in 1934.

(3.) The plaintiffs in second appeal contend that the finding as to the time of Sadhu's death baaed as it is on an inadmissible document, namely, Ex, D, is vitiated and that this document being ruled out, there were no materials before the Courts below to base a finding on, that Mohini had acquired title by adverse possession by the date of the certificate sale. It is further contended that possession of Mohini and of defendant 1 cannot be tacked as they are independent trespassers. Lastly, it is contended that as the properties appertaining to khewat No. 47 were held in cotenancy between Mohini and Sadhu Debya, the defendant in order to succeed should have established ouster which she has not been able to do. The later contentions are on the basis that it is Art. 144 that governs this case and not Art. 142, Limitation Act. The contention of ouster can at once be ruled out on the ground that khewat No. 3 with which khewat No. 47 is held in common tenancy, was the property of Biraja who inherited it from her husband, and Biraja's ownership was exclusive of that of Mohini. Mohini's possession of Sadhu Debya's properties, therefore, cannot be said to be the possession of a cotenant. It could be so said with some amount of force with regard to possession by Biraja. This contention is based probably on the misconception of fact thatMohini and Biraja are for the purposes of possession identical persons. In fact they are not so. Not only are they two different natural persons but also their rights and liabilities with regard to the properties of the holder are independent of each other.