Bandikaratan Tewari Chowdhry vs Ram Kishore Gangopadhry

Mitter, J.—The question of limitation must depend upon the question as to which article of the Limitation Act is applicable to the present case. Having regard to the facts found by the lower Appellate Court, it is clear that Articles 1371 and 1382 are not applicable, because at the time of Shibdoyal''s auction purchase, the judgment-debtor was in possession, and Article 138 is not applicable, because upon the finding of the lower Appellate Court, the purchaser, Shibdoyal, obtained possession through the lessee who was in possession at that time. Articles 1393, 1404, 141 and 143 have evidently nothing to do with the present case. Therefore, either Article 142 or 144 must be applicable.

If Article 142 were applicable, the plaintiffs'' suit would of course be barred, because the date of ''dispossession or discontinuance of possession must, under any circumstances, have been in the year 1278 or 1871, and the suit having been, brought in 1884 it would have been barred. But it appears to us that this article is not applicable to the peculiar facts of this case. There was no doubt a dispossession which have the plaintiff a cause of action. That dispossession was in the year 1871, when, on the expiration of the lease at the end of 1277, wrongful possession was taken by Makunda Kishore, and upon that dispossession a suit was brought by the plaintiffs'' predecessor in title, Shibdoyal, and also by his co-sharer Jadu Nath, and the defendant No, 1, who is setting up the plea of limitation because in that suit his benamidar, Kali Kishore, was one of the plaintiffs. Therefore, the suit contemplated by Article 142, having regard to the facts of this case, was brought and was decreed. But while that suit was pending in the first Appellate Court, the defendant No. 1, who was one of the plaintiffs in that suit, alone took wrongful possession of the property. A suit against him, therefore, would not under these circumstances have been a suit under Article 142, because the dispossession, which gave rise to the cause of action led to the suit which was instituted on 6th December 1875, and that was a suit which, upon the facts found in this case, was brought under Article 142.

The present suit, therefore, not coming under Article 1425, it must come under Article 1446, which is in these general terms "Possession of Immovable property or any interest therein not hereby specially provided for. "The lower Appellate Court was therefore right in overruling the plea of limitation, because the adverse possession of defendant No. 1 commenced when he fraudulently took possession of the property in dispute in the year 1283, while he and his co-plaintiffs were prosecuting the suit which they bad brought upon the dispossession by Makunda Kishore in the first Appellate Court. The appeal of the defendant No. 1 therefore fails.

As regards the objection taken by the plaintiff, we think that it is valid. Under the mortgage set up by the defendant No. 1. he has no right to the possession of the property. His right is simply to enforce that mortgage by the sale of the mortgaged property in execution of decree. He is therefore not entitled to retain possession of the property. If he has any remedy in respect of his mortgage, this decree will not in any way prejudice that right. If he has a right he may enforce it still by a separate suit, but under the mortgage he is not entitled to retain possession of the property.

That being so, the lower Appellate Court was not right in remanding the case in order that an account might be taken. The proper decree, upon the findings of the lower Appellate Court, would have been a decree for possession.

We accordingly modify the decree of the lower Appellate Court, and direct that a decree be made in favour of the plaintiff for possession of the property in dispute.

The plaintiff will recover wasilat u/s 211 of the CPC from the date of the institution of the suit until delivery of possession, or until the expiration of three years from this date, whichever event first occurs, with interest thereupon at six per cent, from date of ascertainment The plaintiff will have his costs in all the Courts from the defendant.

_____________________________________________________________________________________________ Article 137: _____________________________________________________________________________________________

Description of suit. Period of limi- Time from which period begins tation. to run. _____________________________________________________________________________________________ Like suit by a purchaser at the sale Twelve years. When the judgment-debtor in execution of a decree, when the entitled to possession. judgment-debtor was out of possession at the date of the sale. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 138: _____________________________________________________________________________________________ By a purchaser of land at a sale in Twelve years. The date of teh sale. execution of a decree, for possession of the purchased land, when the judg- ment debtor was in possession at the date of the sale. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 139: _____________________________________________________________________________________________ By a landlord to recover possession Twelve years. When the tenancy is determined. from a tenant. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 140: _____________________________________________________________________________________________ By a remainderman, a reversioner Twelve years. When his estate falls into poss- (other than a landlord), or a devisee, for possession of Immovable property. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 142: _____________________________________________________________________________________________ For possession of Immovable pro- Twelve years. The date of the dispossession or perty, when the plaintiff, while discontinuance. in possession of the property, has been dispossessed or has discontinued the possession. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 144: _____________________________________________________________________________________________ For possession of Immovable pro- Twelve years. When the possesssion of the perty or any interest therein not defendant becomes adverse to hereby otheriwise specially pro- the plaintiff. vided for. _____________________________________________________________________________________________