Authored By : Das, W.S. Coutts
Das, J.
1. This was a suit by the respondents for declaration of title to, and for recovery of possession of, a block of land measuring about 42 acres as appertaining to their Mouza. The defendant contested the suit on the ground that the land appertained to their Mouzi and, on the further ground that, in any event, the plaintiffs' suit was barred by limitation.
2. We are not concerned in this appeal with the question of title, for that question has been finally set at rest in the plaintiffs' favour by the decision of the Court below. The Courts below have, however, differed in their views on the question of limitation. The Court of first instance, came to the conclusion that the plaintiffs were out of possession for over twelve years, but that the defendants were not, on the date when the action was brought, in possession for the full period of twelve years. In the view which the trial Court took of Article 142 of the Limitation Act, that Court dismissed the plaintiffs' action. The lower Appellate Court accepted the findings of fact of the trial Court, but, taking another view of Article 142, reversed the decision of the Court of first instance and gave the plaintiffs a decree substantially as claimed by them in the action.
3. The learned Vakil for the appellant in this Court urges before us that, on the findings arrived at by the lower Appellate Court, it should have dismissed the plaintiffs' action. He argues that as the plaintiffs' suit was based on their allegation of prior possession lost by dispossession, it fell clearly within the scope of Article 142, and that consequently it was for the plaintiffs to prove not only their title to the land, but their subsisting title on the date on which they instituted the suit; in other words, it was obligatory on the plaintiffs to prove that they were in possession within twelve years of suit. The starting point for limitation under Article 142 is the date of dispossession or discontinuance, not the date when the plaintiff ceases to occupy the land. It might be argued that there is discontinuance of possession, as soon as the person ceases to occupy the land; but that is clearly not so. As was said by Blackburn, J., in the case of Mc'Donnell v. Mc'Kinty (1847) 10 Ir. L.R. 514, "the word 'discontinuance' means an abandonment of possession followed by the actual possession of another person." That learned Judge continued to say as follows:--"This, I think, must be its meaning, for if no one succeed to the possession created or abandoned, there could be no one in whose favour or for; whose protection the Statute would operate. To constitute discontinuance, there must both be dereliction by the person who has the right, and actual possession, whether adverse or not, to be protested. Actual possession is the object of the Statute, and to apply its provisions to any other case would be to violate its plain meaning and policy."
4. That being so, the problem under Article 142 is not solved by a finding that the plaintiff has been out of possession for over 12 years. The sole question to which we must address ourselves is, what is the date of dispossession or discontinuance Just as discontinuance implies the abandonment of possession followed by the actual possession of another person, so dispossession implies an ouster from possession followed by the possession of another person. It has been found by the Courts below that the defendants have been in possession for less than 12 years. It must, on this finding, follow that the plaintiffs brought this suit within 12 years of dispossession or discontinuance.
5. There are two other cases to, which I should like to refer. In the case of Smith v. Lloyd (1854) 23 L.J. Ex. 194 : 9 Ex. 563 : 2 C.L.R. 1008 : 2 W.R. 271 : 156 E.R. 240 : 96 R.R. 837 Baron Parke laid down the law as follows:--"We are clearly of opinion that that Statute applies not to oases of want of actual possession by the plaintiff, but to cases where he has been out of and another in possession for the presort bed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the Statute. We entirely concur in the judgment of the Chief Justice Blackburn in Mc'Donnell v. Mc'Kinty (1847) 10 Ir. L.R. 514 and the principle upon which it is founded." The principle laid down in the case was approved of in the celebrated case of Trustees, Executors and Agency Co. v. Short (1888) 13 A.C. 793 : 58 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 J.P. 132, which itself was followed by the Judicial Committee in the case of Secretary of State for India v. Krishnamoni Gupta 29 C. 518 (P.C.) : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 269. The true ground of the decisions cited is that the owner must be considered in point of law as always in possession so long as there is no intrusion.
6. I agree with the view expressed by the learned Judge in the Court below and would dismiss this appeal with costs.
W.S. Coutts, J.
I agree.
