Jhari Singh vs Gopi Pasban

Chapman, J.—Second Appeal No. 1809 of 1915 arises out of a Suit No. 28 of 19(sic)2 in which the plaintiff is one Jhari Singh. Jhari Singh says that he purchased the village of Hussainganj from one Tafazual Hossain. Subsequently to the purchase he lost a portion of the proprietary right in litigation with the defendants with whom we are not concerned. His complaint was that in 1910 one Gopi Dusadh got himself recorded at the survey as an intermediate holder as mutwalli of the imambara. On the strength of this entry Gopi Dusadh had from that date begun collecting rents in the village and the plaintiff now desires to get rid of him. In appeal the learned District Judge has dismissed the plaintiff''s suit upon the, ground that it is not shown that the entry in the survey record was wrong. This finding of the learned District Judge has been assailed before us, mainly with regard to the observations of the District Judge to the effect that it is clear that the building is not an imambara and that Gopi Dusadh is not a mutwalli. Certainly the judgment of the learned District Judge is open to some criticism in that regard. It is clear, however, upon the findings of the District Judge that the suit was barred by limitation. His finding is that he is absolutely satisfied that the collection of these sums from the village for the preparation of the taziah and sipar has been going on since the memory of man and that this entry, describing Gopi Dusadh as the mutwalli and the building as an imambara, is the nearest description which could have been given in a few words of a possession that had existed for more than twelve years and presumably before 1910; that is to say, the finding is that twelve years before the suit, these collections had been made by persons other than Jhari Singh''s vendor, and that Gopi Dusadh whom Jhari Singh now wishes to remove had been actually making these collections more than twelve years before 1910 under a claim of being a mutwalli or a trustee of some kind; that being so, it appears to be quite clear that the plaintiff''s suit was barred by limitation.

Appeal No. 1250 arises out of Suit No. 48 of 1912. In that case the plaintiff is one Bibi Niamtunnessa who is a member of the same family as Tafazul Hossain. She purchased the imambara and certain kutcha houses adjoining thereto at an auction sale in execution of a decree on the 11th November 1900, the decree being for costs against Tafazal Hossain. There is a specific finding by the District Judge that the suit is barred by limitation upon the ground that neither Niamtunnessa nor her predecessor in-interest had been in possession within twelve years of the suit. The judgment has been assailed upon the ground that the plaintiff Niamtunnessa was given symbolical possession sometime after November 900, that is to say, within twelve years of the suit, and that, therefore, the suit was not barred. But this symbolical possession was given by the bailiff of the Court only as representing the judgment-debtor Tafazul Hossain. The symbolical delivery of possession did not by itself bring about any transfer of possession by any person who was not bound by the decree for costs in execution of which the sale took place to Niamutunnessa. It is quite impossible to say that the Court has power to make symbolical delivery of possession on behalf of a person who is no party to the proceeding. If upon the arrival of the bailiff on the land the bailiff in fact ejects some third party and then gives possession to the auction-purchaser, that is a different matter. In that case there has, in fact, been an ejectment and dispossession followed by delivery of possession by the bailiff to the auction-purchaser. That was not the case here. In the present case it was merely a symbolical delivery of possession which purported only to be on behalf of the judgment-debtor and could not possibly be interpreted to have been on behalf of any person who is not a party to the suit. The view which I take in this matter is the view in which the Full Benches of the Madras, Bombay and Calcutta High Courts have concurred. The result is that I am of opinion that we cannot interfere with the finding of the learned District Judge that the plaintiff in Suit No. 48 of 1912 has not been in possession within twelve years. The suit was rightly dismissed as barred by limitation. The result is that these appeals are dismissed with costs.

Jwala Prasad, J.

I entirely concur.