Guroo Churn Dutt and others vs Krishna Moni Gupta and others

This suit relates to a as. 9 gundas 6 cor. 2 kr. 2 share of Churs Dhorai and Lotibpore which were permanently settled with Defendant No. 12 and the farther of Defendant No. 13 in June 1870. The Plaintiffs say, they were co-sharers with those persons in the settlement, and that on the nth September 1888, the principal Defendants in execution of a decree obtained against Defendants Nos. 12 and 13, dispossessed them of the share claimed. Defendants Nos. 12 and 13 and Azimuddin Chowdhury were co-share is of the estate to which the original mouzahs Dhorai, Lotibpore and other mouzahs appertained. It appears to be beyond question that the original mouzahs Dhorai and Lotibpore before delusion belonged to Azimuddin alone. He sold his interest to one Pogose, and in 1882, the Official Trustee on Pogose''s behalf brought a suit against Defendants Nos. 12 and 13 for the possession of these churs and obtained the decree which was sold to and executed by the principal Defendants in September 1888.

The Plaintiffs claim the churs under the settlement as land which had reformed on the site of, or accreted to, their mouzahs and also by a title acquired by long adverse possession.

It has been found as regards both the churs that the Plaintiffs had the share claimed in the settlement made with Defendants 12 and 13, that they are not affected by the decree which the Official Trustee obtained against those Defendants, and that they were in possession of the churs with them in 1870 and afterwards. It is not seriously contended that the Plaintiffs are affected by the decree referred to, and it is clear on the facts found that they are not. It is said, however, that the finding on the question of posses (sic) is bad because the plaintiffs in their application of 1877, for the registration of their names stated that their possession commenced about March of that year. Those statements are merely evidence which the District Judge in deciding the question has taken into consideration with the other evidence. It is not a case of misconstruing a document or of rejecting evidence, which ought to have been considered, but of the weight to be attached to a particular piece of evidence, and it was for the Court dealing with the facts to determine what that weight was. As regards Chur Dhurai there is a distinct finding that the Plaintiffs were continuously in possession of the share claimed from 1870 till 1888, that their possession was adverse to the principal Defendants and the persons through whom they claim, and that they had consequently acquired a title by adverse possession. There is no ground upon which we can interfere with this decision.

As regards Chur Lotibpore the case is somewhat different as there was an interruption of the Plaintiff''s possession. In 1873 they and Defendants 12 and 13, were dispossessed by one Rajmohun, an ijardar of another property, who claimed this Chur as his, and in 1880 Defendants 12 and 13 recovered possession in a suit against Rajmohun. The facts found are, that the principal Defendants and the persons through whom they claim were never at any time in possession between the 14th June 1870 and 4th September 1888, that the Plaintiffs and Defendants 12 and 13 were in possession from the 14th June 1870 to 19th September 1873 that Rajmohun De was in possession from then till December 1880, and that the Plaintiffs and Defendants 12 and 13 then recovered possession and held it till the 4th September 1888, when they were ousted by the principal Defendants. The conclusions arrived at on those facts are, that the Plaintiffs have acquired a title by 12 years'' adverse possession and that under sec. 28 of the Limitation Act the title of the principal Defendants and the persons through whom the claim was extinguished.

The Plaintiffs, it may be observed, did not attempt to prove a title based on reformation or accretion, and if this was abandoned as the District Judge seems rightly to suppose, they cannot fall back upon it if the title relied on fails.

We must assume that the Plaintiffs when in possession had no title, and the two periods of their possession when put together do not amount to 12 years. They cannot, we think, add Rajmohun''s possession to their possession, for he was like themselves a trespasser. It is argued that there was in point of law no interruption of possession because the decree obtained against Rajmohun restored them to their former position, and did away with the effect of the dispossession. The position of the true owner is not, however, affected by a decree obtained by a trespasser against a trespasser, so that the possession of the one could be added to that of the other.

But although the Plaintiffs have not acquired a title by adverse possession, the right of the principal Defendants, to the property was extinguished under sec. 28 of the Limitation Act, when they dispossessed the Plaintiffs in 1888, if they could not then have maintained a suit for possession, and the Plaintiffs would still be entitled to recover because the dispossession was wrongful.

The question then is this:--If those Defendants, instead of dispossessing the Plaintiffs in 1888, had then brought a suit for possession, under what article of the second schedule of the Limitation Act would it have come ? If article 142 applied, and while in possession of the property they were dispossessed or discontinued possession, it is pretty clear that more than 12 years had elapsed from the date of dispossession or discontinuance, and that the suit must have been dismissed as out of time. If, on the other hand, article 144 applied, it may be that the suit would have been within time.

The District Judge has not determined this question, and we do not know what the facts are, as to the condition of the land in 1870, whether it was waste or culturable, as to who was in possession at the time when the settlement was obtained, and the circumstances under which the settlement was made. If the Plaintiffs and Defendants 12 and 13 were in possession under temporary leases before 1870, that possession would not apparently be adverse to the true owner, for whom it must be supposed the Collector was holding the land. What the effect of the permanent settlement was we cannot say without knowing the facts We must therefore set aside the District Judge''s decree in so far as it relates to the Lotibpore land and must send the case back in order that he may determine whether when the principal Defendants got into possession in 1888, by dispossessing the Plaintiffs their right was extinguished under sec. 26 of the Limitation Act. If it was, the Plaintiffs must succeed. If it was not, their suit so far as it relates to this land must fail. The Appellants will pay to the Respondents half the costs of this appeal, the other half will abide the result.