HARASIT GOLDER Vs. JALADHAR BISWAS

JUDGEMENT

(1.) The relevant facts necessary for deciding the question of. limitation which falls for determination in this appeal may be briefly stated thus : Rati Kanta (the predecessor-in- interest of defendants 1 to 5) and Shambhu (the predecessor-in-interest of defendants 7 to 11) mortgaged the disputed lands to the father of plaintiffs 1 and 2 in the year 1300 B.S. Rati Kanta and Budhai executed another mortgage in favour of plaintiff 1 in the year 1304 B.S. Plaintiff's father brought a suit on the first mortgage on 12 April 1906 obtained a decree on 24 June 1907 and purchased the mortgaged property on 18 July 1907 in execution of the decree. The sale was confirmed on 7 October 1909 and there was formal delivery of possession on 19 July 1910. During the pendency of the suit on the mortgage Rati Kanta and Budhai executed a mortgage in favour of defendants 12 to 14 and the mortgagees defendants 12 to 14 entered into possession. This mortgage of 1313 was fully paid off. The plaint as originally filed was amended and the plaintiff prayed for recovery of joint possession of the half share of 24 bighas of land with Budhai defendant 6.

(2.) This suit was filed on 25 May 1921. The Munsif who tried the suit in the first instance held on 24 November 1922 that the valuation of the suit was beyond the pecuniary jurisdiction of, the Court and returned the plaint for presentation to the proper Court. The plaint was refilled on 17 January 1924. The lower appellate Court has given a partial decree to the plaintiffs and has directed that plaintiffs are to recover joint possession with defendant 6 of one half of sixteen bighas.

(3.) In appeal to this Court by defendants 1, 2, 12, 13 and 14 it is contended that there has not been a proper trial of the question of limitation as the possession of defendants 12 to 14 on the basis of mortgage of 1313 became adverse to Rati Kanta the mortgagee from the date the said mortgage was paid off and if it is found that the payment was made more than twelve years prior to the institution of the suit under Art. 137, Schedule 1, Lim. Act, the suit would be barred by limitation and it is argued for the appellant that the case should be sent back for a proper trial of the question of limitation.