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Calcutta High Court
Gaya Prosad Karan And Ors. vs Bakya Mani Dasi And Ors. on 18 December, 1928
Equivalent citations: AIR 1929 Cal 297
Author: Mallik


Mallik, J.

1. The facts of the case which has given rise to this appeal are briefly these:

2. One Kashi Nath was the owner of some property. He died leaving three sons, defendants 1 and 2 and Trailakhya, the husband of the plaintiff. Trailakhya died when the plaintiff was a little girl of 14. And after Trailakhya’s death and after defendants 1 and 2 had separated in mess, plaintiff began residing for most of her time at her father’s house and would occasionally come to live in the house of her father-in-law While in her father-in-law’s house, she was well cared for by her brothers-in-law and maintained out of the usufruct of the ejmali property and while residing at her father’s place, she was given at times some profits by defendants 1 and 2 for her necessary expenses, and she used to be given also according to the direction of defendants 1 and 2 some profits from the bhagchasis of some properties other than those in suit. Plain tiff continued to be in possession of the ejmali property in that manner until 1329 B.S., when defendants 1 and 2 began to illtreat her and when she with her father’s help attempted to possess separately the 1/3 share in the property, the defendents dispossessed her in Jaistha 1330 by refusing to allow plaintiff’s father to possess the same and denying, the plaintiff’s title. Thereafter the plaintiff gradually came to know that defendants 1 and 2 had executed kabalas in favour of defendants 3 to 14 in respect of the property in suit. On these facts, the plaintiff who is a pardanashin Hindu lady, brought the suit for a declaration of her title to a third share in the property and for joint possession of the same.

3. The defence inter alia was, that the plaintiff and defendants 1 and 2 were completely separate in 1313, that in 1313, plaintiff surrendered the property allotted to her to defendants 1 and 2 but taking advantage of the absence of a deed of surrender, she again claimed her share in 1315 but was driven out by defendants 1 and 2. The plea of limitation was another point raised by the defence. This defence, however, was negatived by both the Courts below and both the Courts below holding that the plaintiff’s suit was in time, gave her a decree. Defendants 3 to 11 have appealed to this Court.

4. The only point in controversy before us has been on the question of limitation. Dr. Basak for the appellant contended that as the plaintiff had come to Court with a story of possession and subsequent dispossession Article 142, Lim. Act, was the article applicable to the case and the lower Courts were wrong when they held that it was not applicable. I do not think this contention is sound. Plaintiff no doubt, in her plaint, used the word “dispossession (Bedakhal), but her story was not a story of dispossession of the kind as is contemplated in Article 142. Dispossession contemplated in Article 142 refers to actual physical dispossession and there is no dispossession under that article until some one else takes possession. Dispossession is, when a person comes in and drives out of the other from possession. In the present case, as would appear from the facts of the case set out before, the only dispossession alleged by the plaintiff was in the way that the plaintiff’s father was resisted in his attempts to possess separately the 1/3rd share of the plaintiff in the property. This dispossession, if it was any dispossession at all, was not, in my judgment, such dispossession as is contemplated by Article 142. I am, therefore, of opinion, that Article 142, Lim. Act, was not the article applicable to the present case.

5. If Article 142 does not apply to the present case-and I have held that it does not apply-the claim of the plaintiff who was undeniably the 1/3rd cosharer of the property to have a declaration of her title to that extent and to have joint possession of the same could be defeated only if the defendants had succeeded in establishing their adverse possession for 12 years. But here in the defendants, in my opinion, were wholly unsuccessful. There was no assertion by them of any hostile title to the plaintiff and theonly thing that there is on the point in the case is, that defendands 1 and 2, plaintiff’s cosharers, through whom the plaintiff had been getting her share of the property, began to ill-treat her in 1329 and the attempt of her father to possess separately the plaintiff’s 13/rd share in the property was resisted by the defendants in Jaistha 1330. Dr. Basak for the appellant contended that the mere fact that defendants 3 to 14 had entered upon the property and was in possession of the same, was an assertion of hostile title. But such entry upon land, in order to be an assertion of hostile title, must be an entry as an owner. In the present case, there is in the first place, nothing to show that the plaintiff was, until a recent date, even aware of the entry of defendante 3 to 14 upon the land and even when the plaintiff came to know that defendants 3 to 14 were holding the land, it was quite possible, for all that we know, that she took them to be only bhagchasis under her co-sharers defendants 1 and 2. I would therefore hold that there was no such adverse possession by the defendants in the present case as could defeat the lawful claim of the plaintiff to a declaration of her 1/3rd share in the property in the suit and to joint possession of the same.

6. The lower appellate Court, in my judgment, was in these circumstances, right in giving a decree to the plaintiff.

7. The appeal is accordingly dismissed with costs.

8. The cross-objection which is not pressed is also dismissed but without costs.

Cuming, J.

9. I agree.

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