Sheikh Sohnur Ali Hazarika vs J. Huttman, Superintendent on behalf of the Jorehat Tea Company

Banerjee, J.—In this appeal which arises out of a suit for possession of certain land and for the value of trees which stood on the land but which were cut and carried away by the defendant, three points have been pressed on behalf of the defendant-appellant: first, that the suit is barred by limitation and the Lower Appellate Court is wrong in holding that it is not so barred, second, that the claim for damages is barred u/s 43, C.P.C., and third, that the remand order of the Lower Appellate Court, dated 4th March 1893, pursuant to which the Court of first instance has made the decree for compensation was ultra vires. Upon the first point, it is contended that the Lower Appellate Court is wrong in throwing upon the defendant the burden of proving dispossession, whereas it ought to have thrown on the plaintiff the burden of proving his dispossession within twelve years, when the defence was that the suit was barred under Article 142 of the second schedule of the Limitation Act and that the plaintiff had discontinued his possession since the date of his laying down certain boundary pillars. We are of opinion that the appellant''s contention on this point must fail, upon the facts found by the Lower Appellate Court. The Lower Appellate Court has found that the land in dispute is the property of the plaintiff, that though the plaintiff under a mistake, laid down certain boundary pillars leaving the land now in dispute outside the boundary pillars, no one entered into possession of the land so left out, until within twelve years before the date of the institution of the present suit; and that, having regard to the nature of the land which was jungle land, the possession should be held to have continued with the plaintiff until he was actually dispossessed. Those being the facts of the case, we do not think that there was any discontinuance of the plaintiff''s possession on the date of his laying down the boundary pillars within the meaning of Art 142, Schedule II of the Limitation Act. The view we take is amply supported by authority; see the case of Rains v. Buxton 14 Ch. D. 537 and of Gobind Lall Seal v. Debendro Nath Mullick ILR 6 Cal. 311.

As to the second point, it is sufficient to say that the cause of action in the present case is very different from that upon which the former suit for damages was based. That was a suit for damages for trespass upon immoveable property while the plaintiff was still in possession. The present is a suit for possession of a different plot of land and for compensation for trees standing thereon which have been cut and carried away by the defendant. Then, as to the third point, it is not raised in the grounds of appeal and we do not think it right and proper that the appellant should be allowed to raise it now. The points raised before us, therefore, all fail and the appeal must be dismissed with costs.