judgment

kuldip singh, j.:— gitarani paul instituted a suit for declaration of title and possession in respect of thirteen plots of land in mouza boinchee, police. Station pandua, state of west bengal. It was averred in the plaint that the said land was under the possession of bauries who were underraiyats. The original owner of the land was dasarathi dutta but the land has throughout been under the holding of the under-raiyats. After the coming into force of the west bengal estates acquisition act, 1953 dasarathi datta ceased to have any right or interest in the land and the same stood vested in the state of west bengal. Gitarani paul purchased the land from the bauries by way of sale deeds dated february 19, 20 and 26,1960. According to her the possession of the land was also delivered to her by the bauries. It was further stated in the plaint that on. June 5, 1960 one dibyendra kundu armed with gun and accompanied by some police men came to the land in dispute and destroyed the standing crop of the plaintiff. It was also alleged that dibyendra kundu ploughed the land and planted gama grass seedlings on the land. It was on these facts that the suit was filed. Dibyendra kundu and dasarathi datta were arrayed as defendant 1 and defendant 2 in the suit. The bauries were impleaded as proforma defendants.

2. Dasarathi dutta controverted the stand of the plaintiff. According to him, the bauries surrendered their rights and also the possession of the land to his father in the year 1938. He further stated that after the death of his father he sold the land to dibyendra kundu on may 7,1959 and also delivered the possession of the land to him.

3. The trial court on the appreciation of oral and documentary evidence came to the conclusion that the bauries never surrendered their tenancy in favour of the father of dasarathi dutta defendant no. 2 and also that the sale of the suit land by the bauries in favour of plaintiff was valid and the plaintiff had title to the suit lands. On these findings the trial court decrees the suit. Defendants 1 and 2 went in appeal before the subordinate judge, hooghly. The learned judge affirmed the findings of the trial court and dismissed the appeal.

4. Defendant 1 dibyendra kundu further filed an appeal before the high court at calcutta. Without disturbing the concurrent findings of the courts below the high court found that the actual date of dispossession was not specifically mentioned in the plaint and unless the date of dispossession was pleaded and proved the suit for possession was not competent. The high court accepted the appeal and set aside the judgments of the courts below in the following words:

"it appears that the plaintiffs husband and the other witnesses of the plaintiff have only stated that the defendants nos. 1 and 2 in collusion with the police had disturbed, the possession of the bauries and the plaintiff and had destroyed the crops but none of the witnesses had stated about dispossession and/ or the actual date of dispossession of the plaintiff.

In the circumstances, the plaintiff cannot get a decree for recovery of possession unless the plaintiff can establish that within. 12 years from the date of dispossession, the suit had been instituted. In the absence of any proof of dispossession within the period of limitation, the prayer for recovery of possession must fail. In the aforesaid facts, it may not be necessary to decide the other question namely whether or, not the bauries had, in fact, abandoned their tenancy."

5. This appeal, via special leave petition by the plaintiff gitarani paul, is against the judgment of the high court.

6. We have heard learned counsel for the parties. The trial court and the lower appellate court concurrently found that there was no surrender of tenancy rights by the bauries to the father of dasarathi dutta defendant no. 2. It was also found by the said courts that the sale of the land by the bauries to the appellant-plaintiff was valid and binding. The titl