PANCHU MUCHI Vs. BHUTO MUCHI; SREECHARAN GHOSE

JUDGEMENT

(1.) This appeal is by defendant No. 2 against a decision of the Additional District Judge of 24,- Pargannas, dated the 9ch February 1917, affirming a decision of the Mansif. The plaintiffs suit was to establish his title to and to recover possession of 6 cottas of homestead land. The material facts are as follows. The land in suit originally belonged to four brothers, Ananda, Madhab, Rupchand and Gangadhar. In the year 1874i the four brothers executed a mortgage by way of conditional sale in favour of one Bhagirath, a Benamdar of the father of the present plaintiff. On the 2nd March 1888 the plaintiff father obtained a foreclosure decree and recovered possession. Thereupon he settled the land with Madhab and Gangadhar by a kabuliyat, dated 24th Baisak 1291. Then in default of payment of rent, on the 2nd March 1888 he obtained a rent decree against them. One of the tenants, Madhab, died and on the 23th May 1904 he obtained a rent decree against Gangadhar, who was Madhab s sole heir. On the 11th November 1907 the land was brought to sale and the plaintiff purchased it. On the 9th June 1909 he obtained symbolical possession and not being able to obtain actual possession the present suit was brought. In the meantime a claim case was brought under Section 278 of the old Code of Civil Procedure and an order was passed by consent in that case that possession of the claimants other than claimants Nos. 2 and 5 should not be disturbed. One of the claimants was defendant No. 2, the appellant here, and by virtue Of the order his possession was not to be disturbed pending the bringing of a title suit.

(2.) Three questions are urged in this appeal. First of all it is stated that defendant No. 2, who was a son of Ananda who was dead at the date of the foreclosure decree, was not brought on the record. The answer to this, is very short, namely, that the record shows that in fact defendant No. 2 was brought on the record and a guardian was appointed and the order was made in his presence.

(3.) The second is that the suit is barred by limitation. It is stated that there is a finding of the lower Appellate Court confirming the finding of the Munsif that all the defendants bad been living on the land all their lives. In view of the finding it is stated that time began to run against the plaintiff from the 2nd March 1888, when be obtained, the foreclosure decree and that his suit is barred by limitation. Both the Courts below have held that possession of defendant No. 2 was a permissive possession under Gangadhar and Madhab from the date of the lease. It is not disputed that from the date of the lease the plaintiff as a landlord was receiving rent in respect of all the lands from Gangadhar and Madhab, Now possession to be adverse must be nec vi, nec clam and nee precario. I do not think that any of these elements is present in the possession of defendant No. 2. The second point accordingly fails.