Loftus Richard Tottenham, J.

1. At the hearing of this appeal we were disposed to thinkthat the Courts below had committed an error in applying to the case Article138 of the Limitation Act, although both parties had admitted that the casemust be governed by it. And if it had been shown that the formal possessionawarded to the plaintiff on the 2nd of July 1869 had been followed by any actof possession, such as the grant of permission to the defendants which isalleged in the plaint, we should hold that this took the case out of the scopeof Article 138. But we observe that the Court has negatived the plaintiffsallegation in this respect; and has found that there was nothing but the formalpublication of plaintiffs possession. It seems to us, therefore, that theformal possession obtained through the Court having been infructuous, theplaintiff was entitled to bring a suit to obtain actual possession, but wasbound to bring it within the period prescribed by Article 138, viz., twelveyears from the date of purchase.

2. The rulings cited, viz.; Kristo Gobindo Kur v. GungaPershad Surma 25 W.R. 372 and Lalit Goomar Bose v. Ishan Chunder Chuckerbutty10 C.L.R. 258 would require a purchaser to obtain possession through the Courtbefore bringing such a suit as the present one, but would not, we think,preclude him from enforcing his right by suit when the formal possession givenby the Court has failed to put him in absolute possession.

3. But we think the suit was out of time, and this appealmust be consequently dismissed with costs.

.

Krishna Lall Dutt vs.Radha Krishna Surkhel and Ors.(04.02.1884 - CALHC)