Nekari Ball vs Lakshimi Kantha Roy and others

Coutts, J.—This appeal arises out of a suit brought by the plaintiff for a declaration of their ancestral right and for possession of a moiety share in a certain village, Paura, in the Mabhum district. The plaintiff''s case is that the land was originally held jointly by their father Ram Nawaz Roy and the father of the pro forma defendants, Kangali Charan Roy. The property was joint during their life-time and after their death the family remained joint but in the year 1314 the principal defendant fraudulently got a Kebala executed in his favour by the pro forma defendants. At first he did not get possession, as Ram Nawaz Roy, the father of the plaintiffs, was still alive, but on his death the plaintiffs were minors and taking advantage of their position he did obtain possession.

For this reason the suit has been brought. The suit was contested by the principal defendant who alleged that Ram Nawaz Roy and his brother Kangali Charan Roy were separate; that Kangali Charan Roy was in separate possession of this property, in 1309 he mortgaged it, subsequently in 1314 he sold it to him, and since 1309 he has been in undisturbed possession. The suit has been decreed in both the trial Court and the lower appellate Court. The principal defendant has appealed.

It has been found as a fact by both the Courts below that Ram Nawaz Roy and Kangali Charan Roy were joint, that in 1309 Kangali Charan Roy executed an usufructuary mortgage in favour of the principal defendant and subsequently in 1314 he executed a Kabala in his favour. It has further been held that since 1309 the principal defendant has been in possession at first by virtue of the usufructuary mortgage and afterwards under the Kabala.

Now the suit being one for possession, after dispossession the plaintiffs must show possession within the statutory period of 12 years and the contention in appeal is that the principal defendant having been in possession since 1309 the plaintiffs'' suit is barred by limitation. Both the Courts below have dealt with this point somewhat inadequately. As I understand it, their view is that the pro forma defendants being co-sharers the mortgage made the possession of the defendant permissive so far as the plaintiffs were concerned.

This, however, is not necessarily so and it is clear that the point has not been properly considered. The question requires a consideration of evidence and as we cannot do this in second appeal I would set aside the decree of the learned Subordinate Judge and remand the appeal for rehearing.

Ross, J. :

I agree.