Jagabandhu Bhattacharjee and another vs Harimohon Roy and others

The Plaintiffs are proprietors of estate Jawar Bilaspur, which, being chur land, is subject to frequent diluvion and reformation by the action of the river Padma. The chur was washed away in 1276-77 (1869-70), and there was a partial reformation in situ in 1278 (1871). Subsequently there was a dispute regarding, the possession of the reformed land with the result that proceedings were taken under sec. 530 of the old Criminal Procedure Code, and on the 30th January 1878, the land was attached by order of the Magistrate. The Plaintiffs then instituted a suit, No. 43 of 1879, against the Dasses, Mookerjees and Gangulis, for declaration of their title to, and possession of, the attached land, alleging the area to be 781 bighas, and they obtained a decree on the 22nd May 1880, which was affirmed by the Appellate Court on the 5th November 1880. The Plaintiffs made several attempts to execute their decree in 1882, 1883, 1885 and 1886, but owing to a greater portion of the land having again diluviated, and to resistance being offered by the Chatterjees, Jaga Bandhu Bhattacharjee (Defendant No. 1 in the present suit) and others, they were unable to obtain possession of more than a few bighas of the land covered by their decree. In 1880, Plaintiffs brought another suit, No. 128 of 1880, against the Mookerjees and Gangulis in respect of fresh lands which they alleged were reformations in situ and accretions of their estate Jawar Bilaspur. They claimed 1,350 bighas in two plots, one consisting of 1,050 bighas, of which only 150 bighas were at the time above water, and the other of 300 bighas. These lands adjoined on the north and east, the land claimed in suit No. 43 of 1879. This suit was compromised, and a consent decree was passed on the 24th June 1881. The decree was for 300 bighas only. Execution was taken out in 1884 and 1885, and Plaintiffs obtained possession of a small portion of the land decreed, the rest being then under water. Subsequently on an objection taken by one of the judgment-debtors, it was held that the decree was barred by limitation, and the possession already given was set aside on the 21st November 1885. In 1287 (1880), there was a fresh diluvion of the chur, and a gradual reformation of the lands covered by both decrees between 1288 and 1292 (1881 and 1885). There was again a dispute as to possession, and in 1885, proceedings were taken under sec. 145, Criminal Procedure Code, in which Durga Charan Chatterjee was declared to be in possession. Plaintiffs then brought another suit, No. 103 of 1886, against the Chatterjees. This suit was for 2,100 bighas, and was compromised and decreed on the 22nd April 1889. Execution was taken out, but Plaintiffs were opposed by Jaga Bandhu Bhattacharjee and others in taking possession of one-third of the lands decreed. They accordingly took possession of two-thirds only, and instituted a case against the persons who resisted them, under sec. 331, Civil Procedure Code, which they withdrew on the 19th May 1880, with permission to bring a fresh suit. On the same date they instituted the present suit against the Defendants, claiming one-third of 3,571 bighas as reformation in situ and accretion of their estate Jawar Bilaspur. The rights of the Mukerjees in estate Kakrabhag were purchased on the 9th December 1881, at a sale in execution of a decree, ostensively by Defendant No. 1, Jaga Bandhu Battacharjee, who made over two-thirds of the interest purchased to the Chatterjees, while he and his brother Dina Bandhu, Defendant No. 2, retained one-third for themselves. The material objections taken by the Defendant were that the lands claimed appertain to Kakrabhag, that the suit is barred by limitation, "that inasmuch as the decrees" against the Mukerjees in suit No. 43 of 1879 and 128 of 1880, were infructuous. The Plaintiffs were debarred from bringing a fresh suit, for the lands covered by those decrees against the Defendants, who derive title through the Mukerjees, and further that the suit is barred under secs. 13 and 43 of the Civil Procedure Code. The Subordinate Judge gave the Plaintiffs a decree for one-third of 2,491 bighas 16 cottahs, which he found were reformation in situ of Jawar Bilaspur. He was of opinion that no. portion of the suit was barred by limitation, and also that there was no relinquishment under sec. 43 by the Plaintiffs in any of the suits of any part of their claim, and that res judicata did not apply in regard to suit No. 128. On appeal, the learned District Judge accepted the Subordinate Judge''s findings of fact and his view of the law, and affirmed his decree. In second appeal by the Defendants, Sir Griffith Evans contended (a) that the Lower Courts are wrong in holding that the suit is not barred by limitation, and (b) that no fresh suit will lie in respect of the lands covered by suits Nos. 43 of 1879 and 128 of 1880, and particularly as regards the lands in excess of 300 bighas claimed in No. 128 of 1880, because the Plaintiffs virtually, though unwittingly relinquished their claims to these lands. As regards the lands covered by suit No. 43 of 1879, we are clearly of opinion that the present suit is not barred by limitation, the title to these lands being found to be with the Plaintiffs, but the Lower Courts have held, and we think rightly held, that the Plaintiffs were in actual possession antecedent to the 30th January 1878, the date of the Magistrate''s order of attachment and also that they were in constructive possession between this date and the 20th July 1881, when the attachment was withdrawn, and the profits of the property during the period of attachment were ordered to be refunded to the Plaintiffs. The present suit was instituted on the 19th May 1890, within twelve years from the 20th July 188r, and it is accordingly within time. Then the fact that the Plaintiffs were unable to execute their decree in suit No. 43 of 1879, did not extinguish their title to the lands covered by that suit, which was declared by that decree, it merely barred their remedy, and therefore we see no legal bar to their instituting a fresh suit in respect of the same lands against the present Defendants on a fresh cause of action caused by their resistance to the Plaintiffs taking possession of them under the decree in suit No. 103 of 1886, and indeed Sir Griffith Evans did not seriously press this part of his case. The lands covered by suit No. 128 of 1880, stand on a different footing in regard to the question of limitation. This was a suit against the Mookerjees and Gangulis to recover possession of 1,350 bighas of land, On the allegation that they appertained to the Plaintiffs'' estate Jawar Bilaspur. It was stated in the plaint that the lands were comprised in two plots (1) of 1,050 bighas, of which only 150 bighas were above water, and (2) of 300 bighas. The Mookerjees claimed the lands as part of their estate Kakrabhag, and admittedly had been in possession of them since the dates of their reformation in 1871 and 1873. There was a consent decree for 300 bighas only, but Plaintiffs never obtained possession, the Court executing the decree having held on the 21st November 1885, that it was barred. It was argued by Sir Griffith Evans that the present suit in respect of the lands covered by suit No. 128 of 1880 is barred, inasmuch as the Plaintiffs were never in possession within 12 years of suit. We think that there is much force in the argument, but at the same time we are unable to give effect to it. The learned District Judge has held that in the petition of compromise in suit No. 128 of 1880, the Mookerjees admitted the Plaintiff''s title to the lands of Bilaspur shown in the Amin''s map in that case, and that this petition gave to the Plaintiff a new starting point for limitation under sec. 19 of the Limitation Act, and we think that his view is correct. The petition of compromise filed by the Mookerjee Defendants in suit No. 128 of 1880, is printed at page 9 of the Appendix to the Paper-book in this case; and on giving it our best consideration, it appears to us, as is argued by Mr. Hill for the Respondents, that this petition is substantially an admission by the Mookerjees, that the Plaintiffs are proprietors of the lands in Bilaspur as shown in the Amin''s map, and as comprised in the "gher" or boundary line of that estate, as shown in the Thak map. Sir Griffith Evans contended that this is merely an admission that Bilaspur belongs to the Plaintiffs, but a bare admission of this nature was quite unnecessary, seeing that there was no denial by the Defendants, that the Plaintiffs were proprietors of Bilaspur. We think that the admission must be taken to refer to the lands in the suit in which the petition of compromise was filed, and to be in effect that these lands appertained to Bilaspur. The Defendants claim through the Mookerjees by purchase, and the date of their purchase is the 9th December 1881, or subsequent to the filing of the petition of compromise, and therefore the Defendants are bound by the admissions contained therein. In this view, we think that the provisions of sec. 19 of the Limitation Act are applicable, and that the present suit, in respect of the lands covered by suit No. 128 of 1880, is not barred by limitation. The next objection is, that as the execution of the consent decree for 300 bighas was held to be barred a fresh suit for this land will not lie. As against the Mookerjees this objection might have some force, but not as against the Defendants, who were not parties to, and had no mutuality in the execution-proceedings, and the orders passed on the 31st October 1884 and 21st November 1885. Further the Defendants purchased the Mookerjees'' rights in Kakrabhag, and not in Bilaspur, and in keeping the Plaintiffs out of possession of lands covered by the consent decree, we think they acted as trespassers, and as such the Plaintiffs, whose title to the lands is still existing can bring a fresh suit to eject them. The last points pressed are that under sees. 43 and 13, Civil Procedure Code, the present suit for the rest of the land covered by suit No. 128 of 1880 is barred. We are clearly of opinion that sec. 43 does not apply. No doubt the suit was for 1,350 bighas, and the decree was for 300 only; but the Plaintiffs did not relinquish any part of the land claimed. Only 300 bighas were then above water, and a decree was given for possession of those 300 bighas only. Similarly, we think that sec. 13, Civil Procedure Code, is no bar to the present suit, because the question as to the title to the lands under water was not directly and substaintially put in issue, and was not adjudicated upon in suit No 128, and the Plaintiff''s claim in respect of these lands could not have been dismissed, the title of the Plaintiffs to them having been admitted by the Mookerjees according to the view we have already expressed of the petition of compromise. On the whole, we are of opinion that the Lower Courts have correctly decided this case, and we dismiss the appeal with costs.