MANU/WB/0322/1922
Equivalent/Neutral Citation: AIR1922C al459, 1922(36)C LJ92, 76Ind. C as.915, 76Ind. C as.915
IN THE HIGH COURT OF CALCUTTA
Decided On: 10.02.1922
Jagabandhu Saha Vs. Haris Chandra Sil and Ors.
Hon'ble Judges/Coram:
Asutosh Mookerjee and A.H. Cuming, JJ.
JUDGMENT
1. This is an appeal under clause 15 of the Letters patent from the judgment of Mr.
Justice Panton in a suit for recovery of possession of land upon establishment of title.
2 . The subject-matter of the litigation belonged to one Ramjiban Sil who left two
daughters Umatara and Kumari. They inherited their father's estate as joint tenants;
Umatara died in 1899 and Kumari in 1915. on the 12th June 1916 the plaintiff instituted
the present suit on the strength, of a conveyance executed in his favour by Kumari on
the 4th May 1911, with the concurrence of her sons. The claim was resisted by the first
three defendants' who alleged that they had purchased the property from Umatara on
the 23rd April 1888. The substantial question in controversy was that of limitation. The
Court of first instance held that the suit was not barred by limitation and gave the
plaintiff a decree. Upon appeal the District Judge reversed that decision and his -view
has been adopted by Mr. Justice Panton. In our opinion, there is no room for argument
that the claim of the plaintiff has been extinguished by limitation.
3 . It is plain that under Article 125 of the Indian Limitation Act Kumari, during the
lifetime of Umatara, might have instituted a suit for declaration that the alienation made
by her in favour of the first three defendants was void except for her life. Such a suit
could have been instituted within 12 years from the 23rd April 1888, but never was in
fact instituted. When Umatara died, Kumari became entitled to take the entire
inheritance. As the first three defendants were in possession of the property conveyed
by Umatara, Kumari might have instituted a suit for ejectment against them within 12
years from the date of her death, that is, within 12 years from 1899 such a suit was not
instituted by her. On the other hand, on the 4th May 1911, she transferred her interest
to the plaintiff who might accordingly have instituted a suit within the same period as
was available to his vendor. Such a suit also was not instituted. On the other hand, the
plaintiff, after the death of Kumari, instituted the present suit in 1916, which is plainly
barred by limitation. his claim was based on the ground that the transfer to him by
Kumari was for legal necessity and consequently transferred to him an indefeasible title,
But whether he had so acquired a title which terminated with the death of Kumari or
bound the inheritance in the hands of the reversioners, it is not necessary to discuss.
Whatever the nature of his title may be, it has been extinguished by lapse of time.
When the fourth and fifth defendants realised this difficulty, an application was made
with their concurrence by the plaintiff that they might be transferred to the category of
plaintiffs and might be permitted to conduct the suit for the ultimate benefit of the
plaintiff as well as of themselves. This application was not made in the Court of first
instance for an obvious reason. The plaintiff could succeed only on the basis that the
sale by Kumari was for legal necessity. The fourth and fifth defendants, if they sued as
plaintiffs, could succeed only on the contradictory hypothesis that the sale was not for
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legal necessity and did not affect their interest as reversioners. In such circumstances,
when the application was made to Mr. Justice Panton to transfer those defendants to the
category of plaintiffs, the fate was obvious. If the application had been granted, it
would have been necessary for the added plaintiffs to discard the entire evidence on the
record and succeed on a case which not only was not ma de in the first Court but was
absolutely contradictory to the evidence put forward.
4 . The result is that the judgment of Mr. Justice Panton is affirmed; and this appeal
dismissed with costs.
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