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1913 DIGILAW 88 (CAL)

Lahuri Bibee v. Bejoy Chand Mahatap

1913-02-25

body1913
JUDGMENT 1. The Appellant was one of the Defendants. The Plaintiff had purchased certain property at an execution sale in February 1896. The suit was instituted for possession of the property on the 21st January 1908, and in that suit the previous owners of the property were made Defendants. At some later date which was subsequent to the expiry of 12 years from the Plaintiff's purchase the Defendant-Appellant was made a party upon the ground that he had been granted a permanent lease by the previous owners who had wrongfully retained possession since the Plaintiff's purchase. The only ground taken before us is the ground of limitation. It is contended that the Defendant-Appellant can claim the benefit of Art. 144 of the Limitation Act. His lease was granted as late as July 1907. He had therefore not been 12 years in possession under his lease. But it is contended that he is entitled to add to the period of his possession under his lease the 11 years during which his lessors were in possession adversely to the Plaintiff prior to the grant of his lease, that he can thus claim adverse possession from February 1896, the date of the Plaintiff's purchase, till the date when he was made a Defendant in the Plaintiff's suit. This period being in excess of 12 years it is contended that his case comes within the provisions of Art. 144. 2. We do not doubt that title to a limited interest can be acquired by adverse possession, but we see no substance in the contention that the Appellant was entitled to add the period of his lessor's possession to his own. We have been referred to certain cases, more especially to the case of Padajitav v. Ramrav (1), in which Sargent, C. J., held that the question whether a Defendant can supplement his own adverse possession by the previous adverse possession of another person must depend on whether he can be said to have derived his liability to be sued from or through that other person Art. 144 says that the 12 years must be from the date when the possession of the Defendant becomes adverse to the Plaintiff: and in the definition in sec. 3 of the Act it is said that the word " Defendant " must be held to include the person from whom the liability to be sued is derived. 3 of the Act it is said that the word " Defendant " must be held to include the person from whom the liability to be sued is derived. The definitions in sec. 3 are however subject to repugnancy in the context, and the words " possession of the Defendant" in Act. 144 cannot by reference to the definition in sec. 3 be reasonably held to include the possession of another person, a co-Defendant still in possession under a different title. The case of Padajirav v. Ramrav I. L. R. 13 Bom. 160 (1888) is distinguishable. Moreover we are in general accord with the opinion expressed by Pearson, J., in Umrunnessa v. Md. Yar Khan I. L. R. 3 All. 24 (1880)., that the adverse possession of a Defendant must be of the same nature as that sought by the Plaintiff, at any rate in a case of the present kind. The Defendant cannot set up his possession as a permanent lessee as adverse in a suit by the Plaintiff for possession as proprietor. Further the title asserted by the Defendant during his possession was merely a title to hold under the other Defendants in the case. 3. The title of the other Defendants was a vital part of the Appellant's claim. He does not pretend that he can claim the benefit of Art. 144 on behalf of the other Defendants : he cannot therefore claim the benefit of the article for himself, for his position was entirely dependant upon theirs. The suit therefore was not barred by limitation as against the Defendant, and the Appeal must be dismissed with costs to the Plaintiff-Respondent.