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1904 DIGILAW 63 (CAL)

Gadadhar Roy v. Hare Krishna Sarkar

1904-03-29

body1904
JUDGMENT 1. This appeal arises out of a suit brought by a purchaser from a reversioner for recovery of possession of a certain property to which the reversioner became entitled upon the death of a Hindu female, Rup Kumari Debi, in Kartik 1304. The Plaintiff's purchase was in Assar 1305, The Defendants claimed under certain title derived from a person who was the illegitimate son of the last owner of the property, Krishna Chandra Babu, the conveyances to them bearing dates 1874 and 1883 The lower Court has held that the article of the Limitation Act applicable to the case is Art. 144. That article runs thus:-- "For possession of immoveable property or any interest therein not hereby otherwise specially provided for, the limitation is twelve years from the date when the possession of the Defendant becomes adverse to the Plaintiff." The article upon which the Plaintiff, however, relied was Art. 141, which refers to a suit by a Hindu or Mahomedan entitled to the possession of immoveable property on the death of a Hindu or Mahomedan female, the limitation provided being twelve years from the date when the female dies. But it was contended in the Court below--and the contention has also been raised before us--that this article does not refer to a suit by an assignee from a Hindu or Mahomedan, and that the Plaintiff's vendor being out of possession at the time of the Plaintiff's purchase, the case is not governed by the said article. Dr. Asutosh Mukherjee who appears on behalf of the Respondents, however, has very candidly said that there is another article, upon which, the Plaintiff may rely, and this is Art. 136. That article runs thus:--"By a purchaser at a private sale for possession of immoveable property sold when the vendor was out of possession at the date of the sale, twelve years from the time when the vendor is first entitled to possession." Now, assuming that Art. 141 does not refer to a case of an assignee from a person contemplated by that article, yet, under Art. 136, an assignee is entitled to bring his suit within twelve years from the time when his vendor, though out of possession, is first entitled to obtain possession. In the present case, the Plaintiff's vendor became first entitled to possession when Rup Kumari, the widow of Krishna Chandra Babu, died, and that was in Kartik 1304 ; and the suit, having been brought within twelve years from that time, would seem to be amply within time, We think that Art. 141 should be read with Art. 136 of the Limitation Act, and, if these two articles be read together, it is perfectly plain that the Plaintiff is within time. The learned Subordinate Judge has, however, in support of his view, referred to the case of Azam Bhuyan v. Faizuddi Ahamed I. L. R. 12 Cal. 594 (1886). But a careful reading of that case will show that it has no bearing to the facts of the present case. The result is that this appeal is allowed, and the case remitted to the Court of Appeal below for determination of any question on the merits which arises between the parties. Costs will abide the result.