DEWAN MANWAR ALI Vs. UNNODA PERSHAD ROY

JUDGEMENT

(1.) THE facts of this case are complicated, but when fully staled and explained they do not appear to their Lordships to present any grout difficulty. The first, if not the only question, on the appeal is whether the Plaintiff's right to sue has been barred by the Statute of Limitation. That was the only question decided by the High Court, and their Lordships may at once say that if that has been improperly decided they can see no ground whatever for doubting the correctness of the decision of the Lower Court, which, upon fee other material issue in the suit, held that there was no pretence for saying that the lands in dispute were not khalisha lands, that is, lands appertaining to the zemindary, but lakhiraj lands held under some title other than of the zemindars.

(2.) THE facts are shortly these: The estate in question, which is a fractional part of pergunnah Surail, was derived from a Mahomedan lady by her husband and two sons, and was held by them in the following proportions; the Plaintiff, who was one of those sons, had a ten annas share, his father had a two annas share, and his brother, or half-brother Sumdul, had a four annas share. Their enjoyment of the property was, up to the year 1839, what has been termed ijmali or joint, that is, they divided the rents of each village in proportion to their above-mentioned shares in the estate. In 1839 the family arrangement, which has been called a butwara, is said to have taken place. Their Lordships see no reason to doubt that such a transaction did take place. Under it the different villages constituting the estate were divided,-the Plaintiff taking solely certain specified villages as his ten annas share, and his father and Sumdul taking jointly certain other villages which were allotted to them as representing a six annas share. That state of things seems to have continued, and to have been acted upon up to the year 1856. In 1856, Sumdul being in embarrassed circumstances, an execution issued against his four annas of the estate at the suit of one Nusiruddin. It should be mentioned, however, that before this, Munsur Ali, the father, had died in February, 1842, and that in different ways his two annas had come to be vested in the Plaintiff, so that at the time of the execution the elder brother, the Plaintiff, had a twelve annas share, and Sumdul only a four annas share in the zemindary. There seems to have been the usual resistance to execution on the part of Sumdul, and a suit was brought by Nusiruddin, who was execution purchaser as well as judgment creditor, in the year 1858 to enforce his rights. The first judgment in that suit was pronounced on the 3rd of December, 1860. It was a judgment of a somewhat peculiar character. Nusiruddin had brought the suit, not only against Sumdul, and certain persons in whom Sumdul alleged his four annas had become vested prior to the execution, but also against the present Plaintiff, the owner of the twelve annas shares; and it was decided not only that the four annas share had continued to be the property of Sumdul at the date of the execution, and had passed under the sale in execution, but further that the family arrangement or butwara which had been acted on so long, and had been pleaded by the Plaintiff, had not been proved against and was not binding upon Nusiruddin, and that he was accordingly entitled to hold the four annas share of Sumdul, purchased by him in ijmali enjoyment with the Plaintiff. The High Court has held that the right of the Plaintiff to assert the rights which he has asserted in this suit accrued to him at the date of this decree, and that therefore the decree having been passed in 1860 the present suit, which was instituted on the 17th of September, 1873, is out of time.

(3.) IT appears to their Lordships that this, or, at all events, the date of the dismissal of the appeal, is the earliest at which it can be said that the title of the Plaintiff to the relief which he seeks in 'the' present suit accrued. The effect of the decree in Nusiruddins suit, in so far as it set aside the partition, was to give to him a right to take from the Plaintiff four annas of the rents of all the villages previously allotted to him, and to give to the Plaintiff a corresponding equity or right to have the twelve annas of the rents of the villages which had formerly belonged to Sumdul. It cannot, their Lordships think, be said that the Plaintiff was bound to assert this right in 1860, because, Sumdul having appealed against the decree, thert was of course a possibility of its being reversed or altered, and of Nusiruddin a suit being dismissed altogether. It was therefore uncertain against whom the right to receive the twelve annas share of the villages in question was to be asserted; nor did it follow that because the butwara or family arrangement had been declared to be of no effect as between Nusiruddin and the present Plaintiff, it was of no effect as between the Plaintiff and his brother who were co-Defendants in Nusiruddin's suit. Again, it appears that no attempt was made by Nusiruddin to take out execution pending the appeal, and it may fairly be supposed that by arrangement between the brothers there was an agreement that the property should continue to be enjoyed as it had been under the partition. In these circumstances it seems to their Lordships that even if technically the lands now in question remained, pending the appeal, in Sumdul, there was no necessity or duty lying upon the Plaintiff to assert his rights in those lands until Nusiruddin's heirs were put into possession, or at all events until the rights of the parties had been finally determined by the dismissal of the appeal. These considerations are alone sufficient to bring the Plaintiffs suit within the twelve years, and to dispose of this question of limitation. The provision of the Act of 1871, which seems to their Lordships to govern the case, is the 145th article of the 2nd schedule, which says that the time from which the period of twelve years is to be calculated is that when the possession of the Defendant or of some person through whom he claims became adverse to the Plaintiff. Their Lordships think, for the reasons above stated, that there was no possession adverse to the Plaintiff before 1863. A question has been raised at the Bar whether the possession adverse to the Plaintiff did not really begin when Sumdul, driven to his last shift and unable to resist the execution on the part of Nusiruddin against his zemindary interest, first get up the claim to the lands in question in this suit as lakhiraj lands held by a title other than his zemindary title, and therefore capable of being held by him although all his interest in the zemindary had passed away. There is some evidence on the part of the Plaintiff that the ijaradars of his two annas interest in those lands were then actually and forcibly dispossessed under colour of this title. It is not, however, necessary to decide this question. It is sufficient to say that their Lordships cannot concur with the High Court in thinking that the twelve years are to be calculated from the 3rd of December, 1860, or from any time previous to the year 1863.