Satyanarain Mullick vs Jinsi Sah and Others

Kulwant Sahay, J.—The subject-matter of the dispute in the present appeal is an occupancy holding which was in the possession of a lady Mt. Subro who was the widow of one Sridhari Sah. After the death of the widow a suit was instituted by the landlord for recovery of arrears of rent against defendant 2 Gainu Sah on the allegation that he was in possession of the holding as the heir of Mt. Subro, the allegation being that the holding belonged to Mt. Subro as her stridhan property and on her death it had passed to her brother Gainu Sah, defendant 2.

An ex parte decree was obtained in that rent suit and in execution of that decree defendant 1 purchased the holding. In the proceeding relating to the delivery of possession an application appears to have been made by the present plaintiffs under the provisions of Order 21, Rule 100, Civil P.C. This application was dismissed for default on 6th September 1923. The present suit was instituted by the plaintiffs for a declaration of their title to the holding in dispute and for recovery of possession. The plaintiffs'' allegation was that the holding in dispute belonged to Sridhari, the husband of Mt. Subro, and that on the death of the widow the plaintiffs who are admittedly the reversionary heirs of Sridhari acquired the holding as such heirs.

The defence of defendant 1 who was the only contesting defendant in the suit was that the holding was the stridhan property of the widow and that the plaintiffs had no title to the property. A further question was raised on the point of limitation on the allegation that the plaintiffs were never in possession of the property.

Both the Courts below have found that the property belonged to the husband of Mt. Subro and that on her death the plaintiffs acquired it as the next reversionary heirs. The Courts below have further found that the plaintiffs were in possession and that they were dispossessed as alleged in the plaint, the allegation in the plaint being that they were dispossessed in Bhado 1331 Mulki which corresponds to same time in August 1924.

The only point taken by the learned advocate for the appellant, who is defendant 1 in the present appeal is a point which does not appear to have been taken in either of the Courts below. His contention is that the application of the plaintiffs under Order 21, Rule 100, having been dismissed on 6th September 1923 he was bound to bring a suit within one year from that date under the provisions of Article 11(A), Lim. Act, and the suit having been brought more than a year after the order of dismissal of the application under Order 21, Rule 100, it was barred by limitation. Now in order to attract the provisions of Article 11A it was necessary first to establish that the plaintiff who had made the application under Order 21, Rule 100 had been dispossessed of the property in the course of the delivery of possession to defendant 1. There is nothing on the record to show that he was as a matter of fact dispossessed in the course of the delivery of possession.

The allegation in the plaint was distinctly made that although an application was made under Order 21, Rule 100, the plaintiffs continued in possession and that they were actually dispossessed in Bhado 1331. There was no denial of this fact, the case of the defendant being that they were as a matter of fact never in possession of the property since after the death of the widow and that in fact defendant 2 was in possession. Both the Courts below have found that the plaintiffs'' story of possession and dispossession was true. Upon that finding it is clear that the suit cannot be barred. It was contended that the fact that the plaintiffs made an application under Order 21, Rule 100, and that application was dismissed, brought the present suit within the provision of Article 11A irrespective of the fact whether or not the plaintiffs had been actually dispossessed in the course of the delivery of possession. I am of opinion that the plain terms of Article 11A go to show that that article applies only to cases where a person who had been actually dispossessed of the property and who makes an application under Order 21, Rule 100 and that application is dismissed and then brings a suit for the establishment of his title and his right to present possession, and such suit has to be brought within a year from the date of the order.

Reliance is placed by the learned advocate to the words:

to establish the right which he claims to the present possession of the property comprised in the order,

occurring in the last portion of Article 11A and it is contended that these words indicate that even if the person who files an application under Order 21, Rule 100, is not actually dispossessed but makes an application under Order 21, Rule 100, he is governed by Article 11A. In my opinion the wording of the article referred to does not support this contention. These words are exactly the same as the words occurring in Order 21, Rule 103, Civil P.C., and the intention was that Article 11A would apply to a suit contemplated by Order 21, Rule 103. Now a suit under Order 21, Rule 103, must be a suit to establish the right which a person claims to the present possession of property when he has been dispossessed of that property and when he has made a complaint of such dispossession to the Court executing the decree within the meaning of Order 21, Rule 100 of the Code. It follows that Article 11A would only apply if it is established that the plaintiffs were actually dispossessed of the property in the course of the delivery of possession.

Now the allegation of the plaintiffs was that they were dispossessed after the date of the order in the proceeding under Order 21, Rule 100. There being no allegation in either of the Courts below that as a matter of fact the plaintiffs had been dispossessed in the course of the delivery of possession and the point not being taken in the Courts below, it is clear that it is not open to the defendant-appellant in this Court to take the point that the suit was barred under Article 11A, Lim. Act. The suit was framed as coming within the provisions of Article 142, and both the Courts below proceeded on the assumption that the suit was governed by this Article.

This appeal is dismissed with costs.

Macpherson, J.

I agree.