ROSMAT ALI AND ORS Vs. BIGARU MANDAL AND ORS

JUDGEMENT

(1.) On 17th Feb. 1949, we remanded this appeal to the lower appellate Court to record its findings on the following two issues without taking any further evidence and to submit its findings within 4 weeks from the receipt of the records : (1) whether the plaintiff, appellants were in possession of the property in suit within 12 years of the institution of the present suit (2) Whether the defendant-respondent, Bigaru, had perfected his title by reason of adverse possession for the statutory period The finding on the first issue is that the plaintiffs-appellants were not in possession of the property in suit within 12 years of the institution of the suit.

(2.) On the 2nd issue, the finding of the lower appellate Court is that the defendant respondent has not perfected his title by adverse possession for the statutory period.

(3.) The date of dispossession alleged in the plaint was 15th Magh 1349, B. S. The lower appellate Court, however, did not accept the date of dispossession as given by the appellant. It held that the appellant was dispossessed or discontinued to be in possession in 1928 or 1929. The present suit was instituted in 1944. It appears that the appellants' advocate had urged before the lower appellate Court that assuming the appellants' possession was not actual physical possession, nevertheless such possession as they had was sufficient to take the suit out of the operation of Art. 142, Limitation Act. The lower appellate Court did not agree with this contention; it took the view that having regard to the nature of the lands in suit, the appellants were bound to prove actual possession by user and enjoyment.