Authored By : Richard Garth, Henry Stewart Cunningham

Richard Garth, C.J.

1. I entirely agree with the learned Judge in the Courtbelow that the plaintiff has made out no case; and the only reason, why I thinkit necessary to say a few words, is to explain my view of the argument, whichhas been addressed to us by Mr. Phillips, upon the plea of limitation. I thinkit very desirable that there should be no misunderstanding upon that subject.

2. The suit is brought to recover possession of a house andpremises in Calcutta. The plaintiff claims the property, having purchased it,as he contends, from the Official Assignee, as belonging to a person namedMittunjoy Chuckerbutty (deceased), who is said to have been the absolute owner.The plaintiffs case is that the defendants Nos. 1 to 7, who are now inpossession, were tenants on sufferance of Mittunjoy; and consequently that he,claiming through Mittunjoy, is entitled to eject them.

3. These defendants say, that they do not hold under Mittunjoyat all, that they are the tenants of the defendant Sreenarain Chuckerbutty, whois a brother of Mittunjoy, and all the defendants contend that Mittunjoy hadnever any title to, or possession of, the property.

4. This being the nature of the case, the plaintiff, inorder to prove a title and possession in Mittunjoy, has called a witness namedTariney Churn Ban-nerjee, who professes to have been Mittunjoys servant for agreat many years. He says that Mittunjoy and his brothers had no ancestral property;but that he (the witness) and Mittunjoy used to come to Calcutta, and whenthere that they used to collect the rent of certain houses, and among them, ofthe house in question. But his evidence in this respect is of the vaguestcharacter; he cannot say when it was that he received the rents, he certainlynever received them from the defendants Nos. 1 to 7, and the utmost that hisevidence amounts to is, that he received some rent for his house at some timeor other, but when, he cannot say.

5. Under these circumstances, Mr. Phillips has contendedthat the onus is upon the defendants to show that they have been in possessionfor upwards of twelve years.

6. It seems to me that there is no ground for thatcontention. The suit, as I take it, is brought to recover possession ofproperty as upon a dispossession. The plaintiff claims under Mittunjoy; hiscase is, that Mittunjoy was the owner in possession, that he has boughtMittunjoys right and title; and that consequently he is entitled to treat thedefendants 1 to 7, who were Mittunjoys tenants, as trespassers.

7. Of course, if the plaintiff could have shown that thesepeople (the defendants 1 to 7) were really Mittunjoys tenants, he would havehad the same rights against them that Mittunjoy had. But he has not attemptedto prove, and certainly he has not succeeded in proving, that they wereMittunjoys tenants. They are, therefore, holding adversely to the plaintiff,and the plaintiff is seeking to eject them upon the ground that they are inwrongful possession of his (the plaintiffs) property.

8. That being so, I consider that the plaintiff is bound toshow that he or some or one of the persons under whom he claims, have been inpossession of the property within twelve years before suit.

9. Mr. Phillips contends that this is not so, because theplaintiff has alleged in his plaint that the defendants Nos. 1 to 7 were thetenants of Mittunjoy. But if a mere allegation of that kind could relieve aplaintiff from the burthen of proving that he or those under whom he claims hadbeen in possession within twelve years, that device might always be resorted tofor the purpose of evading the law of limitation.

10. Then, again, Mr. Phillips, in support of his argument,has referred us to the case of Rao Karan Singh v. Bakar Ali Khan L.R. 9 IndAp99 decided by the Privy Council the effect of which he contends, is to overrulethe law laid down by the Full Bench of this Court in Mahomed Ali Khan v. KhajaAbdul Gunny I.L.R. 9 Cal. 744 : S.C. 12 C.L.R. 257.

10. In this it seems to me he is in error. That decision ofthe Privy Council was duly considered by this Court in the Full Bench case, butwe did not notice it in our judgment, because we thought it did not apply.

11. That suit in point of fact was not for possession atall. It was brought by the plaintiff, a mortgagee, to recover the principal andinterest due upon two mortgage bonds; and to enforce that claim, by a sale ofthe mortgaged property. The plaintiff, so far as appears, had never been inpossession, nor did he ask for possession of that property. If he had, Article138* of the Limitation Act would have applied.

12. The defendants answer was, that the mortgagee (theplaintiff) could not enforce his right as against him, because he had been inpossession of the property adversely to the plaintiff, and those under whom heclaimed for upwards of twelve years before suit.

13. Under these circumstances, it was contended before thePrivy Council that the plaintiff was bound to prove that he had been in possessionwithin twelve years before suit, and this (as it would seem from the report)upon some general principle of law.

14. But their Lordships held that the suit was not brought(under Article 143+ of the Act of 1871) to recover possession as upon a dispossession,and they, therefore, considered that the plaintiff was not bound to prove apossession within twelve years before suit; but that it lay on the defendant toprove an adverse possession for that period in order to establish his defence.I have said thus much in order to explain why in my opinion the Privy Councildecision is not applicable here, and why that decision does not conflict in anyway with the Full Bench judgment of this Court. But in point of fact there isno evidence in the case which would justify any Court in finding in theplaintiffs favour.

15. The appeal must be dismissed with costs on scale 2.

Henry Stewart Cunningham, J.

16. I concur in thinking that the ruling of the JudicialCommittee in Rao Karan Singh v. Bakar Ali Khan L.R. 9 IndAp 99 cannot beregarded as modifying the law which has been repeatedly laid down in this Courton the subject of limitation in suits for possession of Immovable property.

17. The plaintiff in that case sued for the amount securedon two mortgage bonds, and for sale of the mortgaged property. The defendantpleaded twelve years adverse possession, and all that appears to have beendecided was that the defendant was not, for the reasons set forth in thejudgment, entitled to add to the period during which he had himself been inadverse possession, the period during which the Collector had been inpossession on behalf of Government. I agree in dismissing the appeal withcosts.

-----------------------------------FootNote---------------------------------------

.

Gopaul Chunder Chuckerbuttyvs. Nilmoney Mitter and Ors.(11.01.1884 - CALHC)