DURGA CHARAN BISWAS Vs. KAILASH CHANDRA DAS

JUDGEMENT

(1.) This appeal arises out of a title suit. Two points have been urged on behalf of the appellants defendants. The 1st is that the issue of limitation has been wrongly decided and the second that in deciding the question of title the onus of proof has been wrongly thrown on the defendants.

(2.) The plaintiff, it is found, is the purchaser of the property in question at a sale in execution of a decree for arrears of rent, and any encumbrances that there were to his title have been annulled under Section 67 of the Bengal Tenancy Act. The lower Courts have held that limitation runs from the date of the plaintiff s purchase.

(3.) It is contended on behalf of the appellants that if the landlord was out of possession, it must be shown that the defendants came into possession after the creation of the holding, in other words, it is sought to make the principle in the case of Kalikananda Mukherjee v. Bipro Das Pal Chowdhuri 26 Ind. Cas. 436 : 19 C.W.N. 18 : 21 C.L.J. (sic) applicable to the presentcase. It appears, however, that no such contention was raised in either of the Courts below. The question as to the date of the creation of the holding was not gone into, and it does not appear to have ever been suggested before this appeal was filed that the dispossession was prior to the creation of the interest which was purchased by the plaintiff. After having failed on the points on which they fought the case in the lower Courts, the appellants are not entitle! to a remand to enable them to try and establish their claim on a new case.