RAHIM-UD-DIN MUNSHI Vs. BHABANGARA DEBYA

JUDGEMENT

(1.) The suit relates to a chur known as chur Bansa which appears originally to have been an accretion to the village Bansa, situated in estate No. 6 called Dihi Fatehpur. Government surveyed the chur, found that a certain portion fell within estate No. 6 and released it to the proprietors of that estate. The remainder was formed into a separate estate numbered 407, and settled with the then proprietors of the estate No. 6.

(2.) Subsequently various separate accounts were opened in No. 407 and ultimately the residuary or ejmali share of 6 annas odd fell into arrears and was sold under Act XI of 1859. It was purchased by the plaintiff. The plaintiff also obtained a putni of another share of 3 annas odd from the defendants Nos. 8 to 10, who are said to be the maliks of that share. The plaintiff has brought this suit for possession, praying that estate No. 407 may be ascertained, and that when it has been ascertained he may obtain his share in it by partition. Both the courts below have held that the suit is barred by limitation and the plaintiff appeals.

(3.) Dealing first with the question of the share of 3 annas it is not seriously disputed by the learned pleader for the respondents that the suit is within time. The respondents are some of the proprietors of No. 6 and purchasers from them. Their case, as it has been laid before us, is that they have obtained a title to the lands in suit by adverse possession, inasmuch as they have occupied these lands for more than 12 years, though they are proprietors, not of No. 407, but of No. 6. The learned District Judge has not properly distinguished between the plaintiff's right to the three annas share and his right to the six annas share. He says "It appears that prior to 1305 the entire lands of these two estates remained intact for 30 or 35 years, and that the purchasers of Mauza Bansa remained in possession of the lands of Mauza Bansa as well as of chur Bansa for upwards of 15 years." But in so far as this finding affects the 3 annas share it appears to us that the learned District Judge has gone beyond the pleadings. Paragraph 12 of the written statement shows that the defendants did not plead that the title of the plaintiff's lessors was extinguished by lapse of time at the time when the putni was granted. This being so no question of limitation arises with respect to the 3 annas share and the decisions of the lower Courts must be set aside with respect to it.