ABINASH CHANDRA GHOSH Vs. NARHARI METHER

JUDGEMENT

(1.) The plaintiff, now respondent, having sued to recover possession of a plot of land now in dispute in this suit after declaration of his title to the same, had his suit dismissed by the Subordinate Judge of 24 Paraganas on the ground of limitation there being a finding in his favour on the question of title. This decision has been reversed by the Additional District Judge of 24 Parganas on appeal and plaintiff's suit has been decreed.

(2.) Against this decision defendant 1 has preferred this appeal. Two points have been argued on this appeal : (1) that the decision of the lower appellate Court that the suit is not barred by limitation is wrong; (2) that the lower appellate Court was clearly in error in not allowing the appellant to support the judgment of the Subordinate Judge on the ground that the plaintiff had failed to establish title to the disputed land, a ground which had been decided against him by the Court of first instance and in so doing has misunderstood the plain provisions of Order 41, Rule 22, Civil P.C.

(3.) The material facts necessary for determining the questions raised by this appeal are these : The property in suit admittedly belonged to one Rup Narain Basak and by successive transfers devolved on Padmabati, On her death it devolved on her son Lakhinarain Goswami. Lakhinarain died leaving behind him a widow Dinomoyee who obtained a Hindu widow's estate in the property now in question. She executed a deed of surrender of all her husband's estate in favour of one Atal Goswami. Atal, who was the next reversioner died in the month of Asar 1327 B.S. On Atal's death the property devolved on his widow Mrinalini, as Atal left no son but only two daughters besides the widow behind him. Mrinalini sold the disputed plot to the plaintiff for legal necessity. This is plaintiff's title. Plaintiff's case is that defendant 1's father executed a kabuliyat in favour of Dinomoyee but as this deed is an unregistered document it has been rightly excluded from evidence and nothing more need be said about it. Plaintiff's case further is that a registered kabuliyat in respect of the disputed land (Ex. 6) was executed by defendant 1 in the year 1298 B.S. in favour of Dinomoyee in the benami of defendant 2. In 1910 Dinomoyee brought a suit for rent against defendant 2 on the basis of the kabuliyat. In that suit on the objection of defendant 2, defendant 1 was impleaded on 28 June 1910. The suit, however, was decreed against defendant 2 and dismissed against defendant 1, as he denied the relationship of landlord and tenant. The decree was executed against defendant 2 and the land and the hut standing thereon was attached as the appellant states. The respondent says that only the hut was attached on 14 July 1910. It does not appear clear on the proceedings whether the land and hub were both attached. On the other hand the register shows that the hut only was attached. A claim was preferred by defendant with the result that defendant 1 was found to be in possession on his own account and the attached property - whatever it was, was released.