(SREEPATI) BHUSAN MONDAL Vs. SARBESWAR MONDAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and it arises out of a suit brought by them for recovery of possession of several plots of land, 19, in number mentioned in the plaint after declaration of their title thereto. The plaintiffs claimed the disputed plots as the reversionary heirs of one Syam Chandra Mondal. There is a genealogical tree attached to the plaint which shows the relationship between Syam Chandra and the present plaintiffs and it has not been questioned before us that the plaintiffs are the reversionary heirs of Syam Chandra. The defendants case was that plots 1 to 3 and 17 and 19 belonged to Syam Chandra but that their father purchased the same from Syam Chandra on 18 Falgun 1272 B.S. and that since then they had been in possession thereof in their own right. They further said that plots 14, 15 and 16 were their own ancestral property and that Syam Chandra had no interest therein. As regards plot 18, their case was that it was the stridhan property of their sister Nistarini and that they had got it from her. The Court of first instance found in favour of the defendants as regards plots 14, 15, 16 and 18; and as regards the remaining plots, it held that the defendants had made out a case of adverse possession although it disbelieved the story of the purchase of those plots by the defendants father from Syam Chandra in 1272 B.S. The plaintiffs suit in respect of all these plots was accordingly dismissed by the trial Court. On appeal that decision has been affirmed by the learned Subordinate Judge. The plaintiffs have thereupon preferred this second appeal.

(2.) The points taken before us are with reference to plots 1 to 13 and 17 and 19 and plot 18. We shall first deal with plots 1 to 13 and 17 and 19; and plot 18 will be dealt with afterwards separately.

(3.) It has been contended before us by the learned advocate appearing for the plaintiffs- appellants that the decision of the lower appellate Court on the question of adverse possession by the defendants is wrong as it has not been shown that, at the time of Syam Chandra's death, the defendants predecessor-in-interest had acquired a right by adverse possession to plots 1 to 13 and 17 and 19. It appears from the genealogical tree appended to the plaint that Ramlal, the son of Syam Chandra, predeceased his father leaving behind him. his widow Nistarini who died in Pous 1327 B.S. and it is argued that, as the present suit was instituted within 12 years of the date of the death of Nistarini the limited owner, it should have been held that the suit was in time and that it should also have been held that the right of Syam Chandra to the plots in question was not extinguished by adverse possession. It appears, however, on the finding of the lower appellate Court that Syam Chandra was not in possession of these lands shortly before his death and that Court also finds on a consideration of the documentary evidence in the casop that Ram Narain Mondal, the defendants father, was in possession of these plots as would appear from the thoka of the year 1277 B.S. in which it is stated that these plots appertain to the June of Syam Chandra, but are in the possession of the defendants father Ram Narain. The lower appellate Court has rightly approached the question from the point of view, namely as to whether Syam Chandra was in possession of these disputed plots at the time of his death. If Syam Chandra was not in possession of these plots at the time of his death, limitation would begin to run against him from that time and, as he died more than 50 years before the institution of the suit, the defendants have been in possession for a period of upwards of 12 years so as to acquire a title by adverse possession. If time had once begun to run from Syam Chandra's lifetime, no subsequent interposition of a life estate would be of any avail. If any authority is needed for this proposition, reference may be made to the case cited by the learned Subordinate Judge in his judgment, namely, the case of Mohendra Nath Biswas V/s. Shamsunnessa Khatun [1915] 27 I.C. 954. This was the only point urged on behalf of the appellants as regards plots 1 to 13 and 17 and 19 and we think that the lower appellate Court was right in coming to the conclusion that the reversioners title to these plots was barred. by the. statute of limitation by adverse possession for more than the statutory period by the defendants father Ram Narain and the defendants. The result is that the appeal in so far as it relates to these plots must fail and be dismissed.