Mozuffer Wahid v. Abdus Samad

Pontifex, J.:— In this case the Government sold, for arrears of revenue, a village called Mouzah Kofarpore Amthowa, which had belonged to the defendants or their predecessors. The sale took place on the ??? of April 1864, and it was affirmed by an order of the 7th July 1864, and possession was given under the Act by proclamation on the 3rd August 1864. The purchasers at that sale were the plaintiffs, and they now sue for possession.

Their suit is met by two defences—first, that plaintiffs are barred by limitation; and, secondly, by a question of boundary, that the land the plaintiffs are now suing for, did not form part of that which was sold at the revenue sale, but formed part of a neighbouring estate which also belonged to the defendants or their predecessors.

With respect to both the questions the Subordinate Judge has given a decree in favor of the plaintiffs; but the Judge, in appeal, has held that the plaintiffs' suit is barred by limitation, and therefore it was not necessary for him to inquire into the question of boundaries.

Now, the ground on which he has held that the plaintiff's suit is barred by limitation is this. He says:— “As to the question when the possession of defendants became adverse to plaintiffs, I must hold, in the absence of proof of possession on plaintiffs' part, that it became adverse from the date of confirmation of sale.” That, no doubt, might have been a true conclusion if nothing else had occurred. But the question is not whether after the confirmation on the 7th July 1864 the defendants' possession became adverse, but whether there has been continuous adverse possession from that time notwithstanding the symbolical or constructive possession which was given to the plaintiff by the subsequent proclamation of the 3rd August 1864 whether in fact that proceeding did not make a break in the defendants' possession, and was such an act of possession on the part of the plaintiffs that they are entitled to date from that time in bringing a suit.

Now, we think that this case is similar to the case of Joggobundhu Mukerjee v. Ram Chunder Bysack, in 5 C.L.R, 548, decided by a Full Bench of this Court. Under the Act the Collector was directed, in a certain case, to give possession by reclamation. He did in this case, by proclamation on the ??? August 1864, give possession to the plaintiffs, and on the authority of the case quoted and upon general principles, we are of opinion that the proclamation was an act of possession by the plaintiffs, and that they are entitled to date their suit from the 3rd August 1864, and that inasmuch as they instituted their suit on the 17th July 1876 they are in time.

The plaintiffs raised a further case, that from the 3rd August 1864 they had actual possession down to the 14th December 1864. That case has been disbelieved by the Judge, and being a matter of evidence, we are bound to accept his judgment on that point. Inasmuch as we think that the plaintiffs' suit was not barred by limitation, it became necessary to send the case back to the Court of the Judge of Gya to ascertain whether or not the property sued for was comprised in the revenue sale of Mouzah Kofurpore Amthowa—an issue which he had not considered it necessary to try before. Of course if it was not comprised in that sale, plaintiffs will not be entitled to the lands in suit, and their suit must be dismissed. If it was comprised in that sale, then as against at all events some of the defendants in this suit, their suit will be in time, and they will be entitled to recover. We say “some of the defendants in this suit,” because on the 16th January 1877, at which date limitation would apply, the plaintiffs, on the suggestion of the defendants in their written statement, applied that certain persons, five in number, should be made defendants to the suit, and they were accordingly made defendants. Whether these persons are interested in the land in question or not, and whether or not they have had possession of the lands, is immaterial. The plaintiff's suit as against them is barred.

There were certain other persons, two in number, who themselves applied to the Court that they might be made defendants to the suit, and they were made defendants by an order of the 14th January 1877. The same observation applies to them. At against them the suit has been instituted too late, and as against them must be dismissed. With respect to them, as it was on their own application that they were made defendants, the so is dismissed without costs.

As against the five defendants who were made defendants on the application of the plaintiffs, we think that the suit must be dismissed with costs.

The other costs of this appeal will abide the result.