BISWESWAR BANERJEE Vs. NABA KUMAR SINGH DUDHORIA

JUDGEMENT

(1.) These three appeals are by the defendants. The point raised is one of limitation. The suits were instituted in order to recover possession of certain resumed choukidari chakran lands. They were mortgaged to the plaintiffs by one Kumar Debendra Nath Roy. The plaintiffs obtained a decree on their mortgage and purchased the lands in execution thereof. The defence is that the Kumar had parted with, his interest before the mortgage and these lands are included in the darputni granted to the defendants predecessor Rajani Nath Banerji. There is a concurrent finding that the Kumar did not part with his interest in these lands and the plaintiffs have a good title. The point of limitation arises in this way. After the plaintiffs had obtained delivery of possession Rajani Nath Banerji made an application under Order 21, Rule 100 and the Court directed that he should be restored to possession. The present suits were not filed within a year of the date of that order. Both the Courts below held that this order was without jurisdiction. This finding is now challenged by the appellants. Mr. Chakravarty appearing on behalf of the appellants contended that inasmuch as the order was never set aside by this Court in revision, it cannot be treated as a mere piece of waste paper. The decisions on which the learned Munsif relied are not relevant to the point and do not support his conclusion. On behalf of the respondents Mr. Ghose put his case in a slightly different form to that in which it appears to have been put in the Court of the Munsif. He relied upon the actual wording of Art. 11-A, Limitation Act. The relevant words for the purpose of this case are these: By a person against whom an order has been made under the Civil Procedure Code of 1908, upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder to establish the right which he claims to the present possession of the property comprised in the order.

(2.) It is clear that before the Art. applies, there must have been an act of dispossession by the decree-holder or auction-purchaser. Mr. Ghose contended that he was entitled to show that Rajani was not dispossessed when the plaintiffs obtained delivery of possession. This contention raises a specific issue which might well have been formulated in these terms: "Was Rajani dispossessed by the plaintiffs?" Inasmuch as no such issue was framed it would not have been possible to examine this argument if it had been necessary for that purpose to investigate any disputed questions of fact. The learned Munsif however dealt with the matter on the legal interpretation of the order for delivery of possession which was actually made and did not investigate any matters of fact as between Rajani and the plaintiffs. Further, Mr. Ghose in his argument did not go beyond this. In support of his contention, Mr. Ghose referred to the decision in Muthiah Chetti V/s. Palaniappa Chetti (1928) 15 A.I.R. P.C. 139. That decision deals expressly with Art. 11, Limitation Act, which is concerned with claims to property attached in execution of a decree. The appellant made a claim that the prosperty should be sold subject to his mortgage. This claim was rejected. The relevant portion of their Lordships judgment is in these terms: The point to be considered is - is the appellant a person against whom an order as just described has been made? The Board is of opinion that the answer is in the negative. By Art. 11, Limitation Act, already quoted, he must be a person against whom an order has been made under the Civil Procedure Code "on a claim preferred to, or an objection made to the attachment of, property attached in execution." The case thus comes to be narrowed down to whether it is a necessity of the order here specified that the property to which a claim is made, or to the attachment of which there is an objection, must be property which had been as facto attached. It would seem to be so by the words, and by the very nature of the case, for the only property referred to is "property attached in execution." Unless there has been an attachment, there can be no order made on an objection lodged to it, nor can any claim be made to the property so attached; and without such an order, there is no terminus a quo for the running of limitation and with this the limitation itself is non-existent. The first head of Art. 11, in the opinion of their Lordships, can en its words mean nothing else.

(3.) I should have stated that in that case it was subsequently discovered by the parties that no attachment was actually made although at a previous stage of the litigation they were both under the impression that it had. If the language of Art. 11-A is examined from this point of view a similar result would be obtained. I am therefore of opinion that it is open to the plaintiffs to show that they did not dispossess Rajani. It is common ground that the lands were in the actual possession of tenants and no case of delivery of khas possession could arise. The order of delivery of possession in the plaintiffs favour was made under the provisions of Order 21, Rule 96. That Rule prescribes that in such cases delivery of possession is to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place that the interest of the judgment-debtor has been transferred to the purchaser. The effect of this was that notice was given to the tenants that in future they were to pay rent to the plaintiffs instead of to the Kumar. I cannot conceive how such an order could amount to dispossession of Rajani. If the tenants did not pay their rent there was absolutely nothing to prevent him from suing.