Decided on August 18,1869



- (1.) This was a suit to recover possession of a certain property, on the allegation that, under a deed, dated the 22nd of Jaishta 1257, the plaintiff having nobody to look after his property, and being obliged to go to Calcutta in search of service, made over the property in dispute to the defendant, who is the son of the plaintiff's father's sister, upon trust. The deed recites that the defendant was to pay the rent to the superior talookdar; that he was to look after the property and to enjoy the profits thereof until the plaintiff returned, when he was to give up the property to the plaintiff, without any objection. It appears that the plaintiff was abroad for more than twelve years, and that this suit has been brought about five years after his return, after demanding restoration of his property. The first Court dismissed the plaintiff's suit. In appeal, the Judge of the appellate Court, that is the Subordinate Judge of East Burdwan, states that he concurred generally with the decision of the Court below, but it appears to me clear that in reality he disposed of this suit upon the issue of limitation alone, for he says, "that this document, that is to say the deed of the 22nd Jaishta 1257, cannot be construed to mean that the plaintiff's right to the land in dispute existed within twelve years preceding the date of suit." Again, in another passage, he says: "It is evident that the plaintiff has been out of possession for a long time, and therefore his right has ceased to exist." There has been no finding by the lower appellate Court as to whether this document is a genuine and subsisting document, and whether the lands in dispute are comprised in the document or not. I have no manner of doubt that, assuming this to be a genuine and subsisting document, the plaintiff's suit is not barred by the Statute of Limitation. The document is not a kabuliat, for there is no provision for the payment of rent by the defendant to the plaintiff. If the document be genuine, the defendant was a trustee for the plaintiff, and bound to give up the land upon the plaintiff's return. The suit of the plaintiff is brought within time from the date of the demand for the restoration of the property. The lower appellate Court was therefore wrong in dismissing the plaintiff's suit, on the ground that it was barred by the Statute of Limitation, and the case must go back for the lower appellate Court to find whether the deed is a genuine and subsisting document, and also whether the lands claimed in this suit are comprised in it.
(2.) Costs to follow the result. Markby, J. I am of the same opinion. It is clear that if, as the plaintiff alleges, the defendant came into possession of the land under this document, there could be no cause of action which would be the commencement of a period of limitation at least until there had been a demand on the part of the plaintiff, and a refusal on the part of the defendant to give up the land, or else a distinct assertion of some adverse title. The lower appellate Court does not find that the plaintiff's title was barred on any such view as this, but appears to me to find on the terms of the document itself, that the suit was brought more than twelve years after the defendant had entered into possession of the property under the deed. I think this is an entirely erroneous view of the transaction, and I agree that if the document was a genuine document, and had not been put an end to more than twelve years before the commencement of this suit, that the plaintiff's claim is no way barred by limitation. The case must therefore go back to be heard and disposed of on the issues mentioned by Mr. Justice Kemp.;

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