Judgement

Consolidated Appeal (No. 34 of 1924) from four decrees of the High Court (April 12, 1922) reversing four decrees of the Subordinate Judge of Muzafferpur (September 12, 1918).

The four suits giving rise to the consolidated appeal were brought by the first respondent on November 30, 1916, to recover from the defendants (appellants) certain immovable properties with mesne profits ; two other plaintiffs who had acquired an interest in the properties were joined as plaintiffs. By his plaints the first respondent claimed to be mahant of a math of Sanyasis in succession to one Bhawan Gir, and alleged that the properties were math properties which had been alienated by Bhawan Gir without legal necessity. A suit brought by the first respondent in 1895 to recover mahant properties alienated by Bhawan Gir had been finally dismissed on November 30, 1897, on the ground that it was not established that Bhawan Gir was dead. The present plaint alleged that since the decision of the High Court in 1897 nothing had been heard of Bhawan Gir, and the Court was asked to presume that his death took place on November 30, 1904, and that the cause of action arose at that date.

The defendants, among various other defences, pleaded that the suits were barred by limitation.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge, while deciding all other issues in favour of the plaintiffs, held that the suits were barred under the Indian Limitation Act, 1908, Sch. I., art. 134, since they had not been commenced within twelve years of the alienations. He accordingly dismissed the suits.

On appeal to the High Court the decrees were reversed and decrees for possession with mesne profits were made.

Das J. (with whose judgment Bucknill J. agreed) held, having regard to the decision of the Privy Council in Vidya Varuthi v. Balusami (( 1921) L. R. 48 I. A. 302.), that art. 134 did not apply, and that the period of limitation, as provided by art. 144, was twelve years from the date when the possession of the defendants became adverse to the plaintiffs, which was upon the death of Bhawan Gir. The learned judge was of opinion that there being no presumption or evidence as to when Bhawan Gir died, the suits were not barred. Upon the other issues the Court agreed with the Subordinate Judge. The appeal to the High Court is reported at I. L. R. 1 Pat. 475.

1925. July 21, 23, 24. De Gruyther K.C. and E. B. Raikes for the appellants. The most favourable view for the plaintiffs-respondents is that their cause of action did not arise until the death of Bhawan Gir; but even on that supposition the suits were barred by limitation. According to the evidence adduced by the plaintiffs Bhawan Gir died in 1892 ; there was no evidence that he was alive within twelve years of the suit. No presumption arose under s. 108 of the Indian Evidence Act, 1872, that he died at any particular date In re Phene’s Trusts (( 1869) L. R. 5 Ch. 139.); Muhammed Sharif v. Bandi Ali (( 1911) I. L. R. 34 A. 36, 41.)—dissenting from Dharup Nath v. Gobind Saran (( 1886) I. L. R. 8 A. 614.); Rango v. Mudiyeppa (( 1898) I. L. R. 23 B. 296.) ; Fani Bhushan Banerji

v. Surjya Kanta Roy. (( 1907) I. L. R. 35 C. 25.) The onus was upon the plaintiffs to show that the suits were not barred under the Indian Limitation Act, 1908, Sch. I., art. 144 Perhlad Sein v. Rajender Kishore Sing (( 1869) 12 Moo. I. A. 334, 337.), decided under s. 32 of the Limitation Act, 1859; Mahomed Ibrahim v. Morrison (( 1878) I. L. R. 5 C. 37.); Mahomed Ali Khan v. Khaja Abdul Gunny (( 1883) I. L. R. 9 C. 744.) ; Code of Civil Procedure^ 1908, Order VII., rr. 1 (e), 11 {d). But the cause of action really arose at the date of the alienations as decided in Damodar Das v. Adhikari Lakhan Das (( 1910) L. R. 371. A. 147.) and Ishwar Shy am Chand Jiu v. Ram Kanai Ghose. (( 1910) L. R. 38 I. A. 76.) There was no math such as is referred to and described in Ram Parkash Das v. Anand Das (( 1916) L. R. 43 I.