Chittatosh Mukherjee, J. - (1.) The present appellants as plaintiffs instituted a suit against the respondents for declaration of their title and for recovery of possession of Plot Nos. 3654 and 3669, Khatian No. 479, Mouza Belgharia and for mesne profits. They also prayed for recovery of Rs. 442/- against the defendant No. 1, Nihar Kumar Aditya, who had been awarded the said sura as compensation by the Government for requisitioning of the suit plots under the Defence of India Rules, 1939. The defendant No.1, Nihar Kumar Aditya and the defendant No, 1 (ka) filed two written statements contesting the plaintiffs claim. The learned Subordinate Judge, 5th Court, Alipore had decreed the said suit against the defendants except against the defendant No. 2(ka). He ordered that the plaintiffs title to the suit property be declared and that they would get khas possession by evicting the defendants. The plaintiffs would be entitled to recover mesne profits by filing a subsequent suit. The defendant No. 1 being aggrieved by the said decision, had preferred an appeal. The learned Additional District Judge, 2nd Court, Alipore, dismissed the appeal of the defendant No. 1 and the cross-objection filed by the plaintiff-respondents. The defendant No. 1, being aggrieved by the said decision, preferred a second appeal to this Court.
(2.) On 21st March, 1958 Renupsda Mukherjee and Binayak Nath Banerjee, JJ. allowed the said appeal and set aside the judgment and decree of the lower appellate court and remanded the appeal to that court for a fresh hearing in the light of their observations and in accordance with law. New evidence, if any, might be adduced in the lower appellate court. The Division Bench held that Surendra and Nagendra, who were the predecessors-in-interest of the plaintiffs, were the owners of the disputed plots. The plaintiffs, who ware the heirs of Surendra, got 16 annas title to the disputed plots by partition with Nandalal, who had acquired the interest of Nagendra, unless it was found that the claim of the plaintiffs was barred by limitation. The Division Bench further held "in our judgment such a case is governed by Article 142 of the Limitation Act and the onus lies on the plaintiff-respondents to prove their possession at some time within 12 years prior to the suit. The Division Bench found that the proper Article which applied to the present case was Article 142 of the Limitation Act and the courts below had committed errors of law on the question of limitation. The Court below was directed to find whether the plaintiffs had succeeded in showing that they were in possession of the suit land at any time within 12 years of the institution of the suit. If the finding on the said point was in the affirmation, the lower appellate court was directed to affirm the decree of the trial court. The trial courts decree was to be reversed if the finding of the lower appellate court was to the contrary.
(3.) After the aforesaid remand the learned Additional District Judge, 1st Court, Alipore, by his judgment has found that the plaintiffs had failed to prove that they were in possession at any time within 12 years before the institution of the present suit and the suit was hit by Article 142 of the Indian Limitation Act and therefore, the decree passed by the learned Subordinate Judge should be vacated and the suit be dismissed. Accordingly, the lower appellate court allowed the appeal of the defendant No. 1 and dismissed the suit brought by the plaintiffs. Thereafter, the plaintiffs have preferred this second appeal.;