Fakira Pasban vs Bibi Azimunnissa

This is an appeal from the decision of the District Judge of Bhagulpore, dated the 4th July 1898, in which he affirms the decision of the Munsif of Madhepura, giving the Plaintiff a decree for possession of certain lands. The Plaintiff sues as occupancy raiyat to recover possession of the land of which, she says, she has been dispossessed by the Defendants Nos. 1 to 3, who are her landlords. The suit was brought as against these landlords within a period of two years, but a 4th Defendant, namely, Fakira Pasban, was added as a party Defendant in the suit by the Court of its own motion; and this party was not added until the 8th of September 1897, when more than 2 years have expired from the date of the alleged dispossession. The Courts below have held that the suit is not barred by limitation as against this Defendant, Fakira Pasban, who was added as a party, as he was alleged to be a tenant of the land. The lower Appellate Court, however, has found that he was not a tenant of the land, but was merely fighting the case on behalf of the Defendants Nos. 1 to 3 and in collusion with them. The learned pleader for this Defendant, Fakira Pasban, who is the Appellant in this case, contends that the view of the District Judge is wrong and that the suit is barred by limitation as against him for two reasons, first, that the learned Judge was wrong in relying upon the case of Grish Chunder Sasmal v. Dwarka Nath Dinda I. L. R. 24 Cal, 640 (1897), on the authority of which he has held that no question of limitation arises in this case so far as the Defendant No. 4 Fakira Pasban is concerned, and, secondly, he urges that the period of limitation applicable to this Defendant is two years, as laid down in Art. 3 of Sch. III of the Bengal Tenancy Act. We, however, are unable to admit the correctness of either of these pleas. In the first place, we think it has been (sic) down clearly in the case of Grish Chunder Sasmal v. Dwarka Nath Dinda ILR 24 Cal. 640 (1897) referred to above, that

where the Court, acting on information brought to its notice adds a party, who, it thinks, is necessary for the disposal of the suit, no question of limitation arises.

In coming to this decision the learned Judges have followed the case of The Oriental Bank Corporation v, J.A. Charriol ILR 12 Cal. 642 (1886). Furthermore, we are fortified in our view that these decisions are correct by the case of Khadir Moideen v. Rama Naik ILR 17 Mad. 12 (1892). The pleader for the Appellant, however, cites the case of Imam-ud-din v. Liladhar, and he says that the learned Judges who decided the case of Grish Chandra Sasmal v. Dwarka Nath Dinda ILR 24 Cal. 640 (1897) have gone beyond the ruling laid down in the case of The Oriental Bank Corporation v. J.A. Charriol ILR 12 Cal. 642 (1886), inasmuch as that decision was never intended to prescribe that when a Court adds a person as a necessary party to a suit, under sec. 32 of the Code of Civil Procedure, it is free from the restrictions imposed upon it by sec. 22 of the Limitation Act.

Now, we have considered the case of The Oriential Bank Corporation v. J.A. Chorriol ILR 12 Cal. 642 (1886); and in our opinion the Judges who decided that case did intend to lay down such a rule, although the provisions of sec. 22 of the Limitation Act are not expressly referred to in their judgment in that case. But we think that that was their intention from the reasons given at full length in pages 650 to 652 of the report. And we may add that in the case of Khadir Moideen v. Rama Naik, ILR 17 Mad. 12 (1892) the provisions of sec. 22 of the Limitation Act are referred to, and it is there laid down [as we think it was intended to be laid down in the case of The Oriental Bank Corporation v. J.A. Charriol ILR 12 Cal. 642 (1886)], that sec. 22 of the Limitation Act does not apply when the Court of its own motion acts under sec. 32 of the CPC and orders that the Defendant be made a Plaintiff; and there can be no question that this was the intention of the learned Judges who decided the case of Grish Chunder Sasmal v. Dwarka Nath Dinda, I. L. R. 24 Cal. 640 (1897). For these reasons, we must follow the two rulings of this Court above cited, and from which we see no reason whatever to dissent, and in these circumstances we must hold that no question of limitation arises in the present case and that the judgment of the District Judge is correct on the question of limitation. That being so, the, second plea raised by the learned pleader for the Appellant falls to the ground and it is not necessary for us expressly to deal with it. At the same time, we may point out that in this case the Plaintiff does not ask for any relief as against Fakira Pasban, the Defendant No. 4, that she did not sue him at all and that it was not at her request that Fakira Pasban was made a party to the suit. Fakira Pasban was added by the Court of its own motion; and it had found that he is not in possession and is not a tenant of the land and that being so, it does not appear to us that the suit, as instituted, is barred by the 2 years'' rule of limitation provided by Art. 3 of Sch. III of the Bengal Tenancy Act as regards the Defendant No. 4, Fakira Pasban. However that may be, it is not necessary for us to decide this question, seeing that the appeal fails on the first of the grounds we have mentioned. We therefore dismiss the appeal with costs.