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1949 DIGILAW 642 (CAL)

Ambujabarani Dasi v. Hosain Buksh

1949-12-21

body1949
JUDGMENT Sen, J. - This Rule has been obtained by the Defendant No. 5 in a suit for possession of immovable property instituted under the provisions of Section 9 of the Specific Relief Act. 2. The facts which need be stated briefly are these. The Plaintiff instituted this suit for possession on March 4, 1948, against certain Defendants. The Defendant No. 5 was not a party to the suit as originally framed. In the plaint it was stated that the Defendants, who were then parties to the suit, had dispossessed the Plaintiff on September 19, 1947. A written statement was filed by the Defendant No. 1, Sm. Sabitribala Dasi, and in that written statement, she denied that she had dispossessed the Plaintiff and claimed the right to possess the property and stated that on February 14, 1948, she had transferred that right to the Defendant No. 5. This written statement was filed on the May 6, 1948. On June 9, 1948, the Defendant No. 5 was added as a party and the suit proceeded. 3. It was argued before the learned Munsif that the suit was barred by limitation but that argument was negatived and the suit was decreed. 4. The Defendant No. 5 alone has applied for a reversal of that decree on the ground that the suit, so far as she is concerned, is barred by limitation. The grounds upon which this contention is based are as follows: The Defendant No. 5 was not added as a party till May 6, 1948. The suit must, therefore, be deemed to have been instituted on that date so far as she is concerned. For this proposition reliance is placed on Section 22 of the Indian Limitation Act. It was argued on behalf of the Petitioner that, if the suit be deemed to have been instituted on May 6, 1948, it was barred by limitation, inasmuch as the dispossession alleged in the plaint took place on September 16, 1947, more than six months from May 6, 1948. 5. The point in this form does not appear to have been taken before the learned Munsif. His judgment does not show any consideration of such a point. 5. The point in this form does not appear to have been taken before the learned Munsif. His judgment does not show any consideration of such a point. He disposed of the question of limitation on the finding that, as the dispossession took place on September 18, 1947 and as the suit had been instituted within six months of that date, the suit was not barred by limitation. 6. Even though this point may not have been argued before the learned Munsif, T am bound to consider it, because a party may raise a question of limitation of this description at any stage. 7. Learned advocate on behalf of the opposite parties contends that the suit as regards the Defendant No 5 is not barred by limitation. His argument is this: The dispossession by the Defendant No. 1 took place on September 18, 1947 and this dispossession continued till the date of the suit. In the interval, on February 14, 1948, the Defendant No. 5 came into the place of the Defendant No. 1 and continued the dispossession. True, the suit, so far as the Defendant No. 5 is concerned, must be taken to have been instituted on June 9, 1948. If the suit is deemed to have been instituted on that date, it is still within time, inasmuch as it is within six months of February 14, 1948, which was the date on which the Defendant No. 1 transferred her interest to the Defendant No. 5. In my opinion, this contention should prevail. The dispossession, which took place on September 18, 1947, gave rise to a cause of action against the Defendant No. 1. The suit with respect to that cause of action is within time. In the interval, the Defendant No. 5 stepped into the shoes of Defendant No. 1. There was no fresh act of dispossession, but the Defendant No. 5 inherited, as it were, the rights and liabilities of Defendant No. 1 in respect to this property and that took place on February 14, 1948. She was added as a Defendant on June 9, 1948 and the suit is to be considered as having been brought on that date so far as she is concerned. Therefore, the suit has been brought against her within six months of the date on which her liability u/s 9 of the Specific Relief Act accrued. She was added as a Defendant on June 9, 1948 and the suit is to be considered as having been brought on that date so far as she is concerned. Therefore, the suit has been brought against her within six months of the date on which her liability u/s 9 of the Specific Relief Act accrued. It is true that the Plaintiff, when adding Defendant No. 5, should have made a formal amendment of his plaint, but, in my opinion, without this amendment, upon the facts stated by the Defendants themselves, the Plaintiff would be entitled to resist the plea of limitation. 8. In these circumstances, I hold that the decision of the court below should not be interfered with. The Rule is discharged. There will be no order for costs. 9. I would draw the attention of the learned Munsif to the fact that he has not given the corresponding English dates to the dates given according to the Bengali calendar. In future he should take care to give the corresponding English dates, and if possible, to adhere to one calendar. His method of giving dates, using different calendars creates great confusion.