DEO NARAIN CHOWDHURY Vs. CRHWEBB
DEO NARAIN CHOWDHURY
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Ghose, J -
(1.) Two points have been raised before us in this appeal on behalf of the plaintiff, appellant, one being that so far as the plots Nos. 1 and 2 covering an area of 5 cottahs of land are concerned, the plaintiff is not barred by the limitation of two years prescribed by Article 3,schedule. Ill, of the Bengal Tenancy Act, because there was an order by the Magistrate, under the provisions of Section 146 of the Criminal P. C., attaching the lands in question, and the limitation prescribed by Art. 47, Schedule III of the Indian Limitation Act for setting aside such an order is three years from the date when the order is made; and the other point raised is, that the defendant not having raised the plea of limitation; and the Munsif not having raised an issue as to limitation, the Subordinate Judge in appeal ought not to have dismissed the case upon the ground of limitation, without, at any rate, allowing the plaintiff an opportunity of adducing evidence upon the matter.
(2.) As to the first point raised before us, it seems to us that the ouster of the plaintiff, as found by the Subordinate Judge, and that finding is based mainly upon the evidence coming from the side of the plaintiff himself, having taken place on the 9 of February 1895, antecedent to the date on which the Magistrate made his order under Section 146 (which was on the 31 May, 1895), the limitation as prescribed by Art. 3, Schedule III of the Bengal Tenancy Act, began to run against the plaintiff from the date of the actual ouster; and it would not be reasonable to hold that because subsequent to this ouster some dispute arose between the parties, and the interference of the Magistrate was invoked, and because that officer attached the land, being unable to find which party was in possession, the limitation which had already began to run against the plaintiff ceased to run on, and that the plaintiff would have a fresh start of limitation from the date when the Magistrate made his order under Section 146 of the Criminal P. C.. Moreover, as pointed out by the learned Vakil for the respondent, it is not altogether free from doubt whether Art. 47, Schedule III of the Indian Limitation Act, which relates to a " person bound by an order respecting the possession of property made under the Criminal P. C.," is applicable to the case of an order made under Section 146, which does not maintain the possession of any party. We accordingly overrule the point raised before us.
(3.) As regards the other question raised, all that we need do is to refer to Section 4 of the Indian Limitation Act, and Section 184 of the Bengal Tenancy Act, which empowered the Subordinate Judge to take cognizance of the question of limitation, though it might not have been raised by the defendant in the Court of first instance, if upon the proceedings in the case it appeared to him to be clear that the suit of the plaintiff was barred by limitation. He has come to a definite conclusion upon this matter. He has held that the allegation of the plaintiff as to dispossession, and to his previous possesssion within two years before the institution of the suit, is not true; but rather the evidence on the other side tends to show that the defendants were in possession for more than two years. All that the plaintiff in view of these facts could do was to ask the Subordinate Judge to allow him an opportunity of adducing other evidence upon the matter of possession if he thought such other evidence was available, and forthcoming. He apparently did not do so nor does it appear that in his petition of appeal to this Court he makes any complaint that by reason of the omission of the Munsif to raise any issue as to limitation, he did not adduce such evidence as he might have adduced if the Munsif had raised the issue.;
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