Judgement

Appeal from a judgment and decree of the High Court (July 12, 1909) reversing a decree of the Subordinate Judge of Nuddia (June 30, 1906).

Law. Rep. 44 Ind. App. 104 ( 1916- 1917) Kumar Basanta Roy V. Secretary of State For India In C ouncil 6

The appellants on September 6, 1904, instituted a suit for a declaration of their title to, and for partition and possession of, certain lands which had been re-formed after diluviation. They claimed that the lands were re-formations of mauzas Durlabhpur, Jirat, and Hatikanda, that a 10-anna share in those mauzas appertained to lot Mahomed Aminpur (mahal No. 3989) and a 6-anna share to lot Gobindpur (mahal No. 100), and that a moiety in Mahomed Aminpur was held by their father, and on his death in 1883 passed to them, being under the management of the Court of Wards until January, 1894. The defendants were the owners of mahal No. 100 (the present respondents Nos. 2 to 8, and hereinafter referred to as the principal respondents), the raiyats in occupation, the Secretary of State for India (who took no part in the appeal), and, as formal defendants, the plaintiffs, co-sharers in Mahomed Aminpur. By their written statement the principal respondents denied the title of the appellants and pleaded that the suit was barred by limitation. The Secretary of State for India pleaded that he was not in possession and that there was no cause of action against him. The facts appear from the judgment of their Lordships. The Subordinate Judge held that the title of the appellants was clearly proved. He rejected the plea of limitation on the ground that, the plaintiffs being minors and under the Court of Wards, Sched. II., art. 120, of the Limitation Act, 1877, applied. He made a decree against the principal respondents and the Secretary of State for India.

The principal defendants appealed to the High Court, which reversed the decree. The learned judges (Chitty and Carnduff JJ.) doubted whether it was established that any part of the lands in suit formed part of Mahomed Aminpur; they did not, however, determine that question as they were of opinion that the suit was barred by limitation. After pointing out that art. 120 had no application, they said " A suit for possession of immovable property must fall either within art. 142 or art. 144. Here, as the plaintiffs make no allegation of ever having been in possession, or having been dispossessed, it must be governed by art. 144, which fixes the period of twelve years commencing from the time when the possession of the defendant becomes adverse to the plaintiff. It was first argued for the plaintiffs that from 1888 to 1894 the possession of the Government was the possession of the Court of Wards, and through them the possession of the plaintiffs. We are aware of no authority for the proposition that the Government and the Court of Wards are in any sense identical, or that the Court of Wards can be regarded in any sense as merely a department of Government. The Court of Wards is a statutory body, and in this province, no doubt, the Board of Revenue is the Court of Wards, but that is not enough to make the possession of Government the possession of the plaintiffs by the Court of Wards.....It was next urged that the possession of the Government did not in fact commence until 1894, when the char was first settled for five years. This, however, is contrary to the evidence.....There can be no doubt whatever that from 1889 at least portions of the land were under cultivation by the utbandi tenants of the Government. It is certain that the Government took possession at once on the re-formation, and their possession must be taken as dating at the latest from 1889." After rejecting the contention that the principal defendants possession after 1902 was as co-sharers with the plaintiffs, on the ground that the plaintiffs had not proved that the mauzas were held jointly, they said " it was next urged that the re-formation of the char in suit was gradual, and t