TMI Blog1886 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st of March 1866, and the other by Mirza Mahomed Taki Khan, alias Bari Khan, on the 6th of April 1866. They were the brothers and heirs of Mussamut Fatima Begum, alias Nawab Bohu Begum, and they thereby leased in perpetuity to Imambandi Begum, in the names of her servants Syed Jaffer Ali and Mussamut Nazirunissa, the mouzahs specified in the first paragraph of the plaint (being part of the estate purchased by Eampersad Das) at an annual jumma of ₹ 5,801,7 annas and 6 pie. The main question in the suit and in the appeal is what was the right of Bohu Begum in the estate which was thus leased. The question in the cross-appeal is whether the suit is barred by the law of limitation. 2. The property in dispute originally belonged to one Abdur Rahman, and it was, along with the share of his brother, Mokim Khan, brought to sale in execution of a decree against them on the 1st of December 1851. It was purchased by their servant, Najaf Ali, and it was proved, and has been found by both the lower Courts, that his purchase was benami for Abdur Rahman and Mokim Khan. Najaf Ali's name appears to have been entered in the Collector's books as the proprietor, and to have remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purchase as is in the ikrarnamas. It then refers to the conditional sale to Omraet and the two ikrarnamas and after stating that, owing to drought and for payment of Government revenue, Najaf Ali had obtained other loans, and decrees had been obtained against him, it proceeds thus : Now Mussamut Nawab Bobu Begum, widow of Khaja Mahomed Abdur Rahman, deceased has paid me wholly and in full on account of the purchase-money of the conditional deed of sale, and the amount of the decree due to the aforesaid gentleman in proportion to her own share which has been found due by calculation, and taken the zurpeshgi due to ticcadars for the aforesaid mouzahs, and the amounts of debts due to Mahajuns on account of her own share upon herself to pay, and asked me to execute and give a deed of sale in due form. Then Najaf Ali sells and transfers to Bohu Begum the share which was purchase 1 by Abdur Rahman, stating it to be in conformity with the ikrarnama. 5. There was no evidence of any payment to him by Bohu Begum, and the statement as to that is probably as fictitious as the statement of his purchase having been made for her. The mortgage being a usufructuary one had most probably been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was an admission by Isa Khan that Bohu Begum was the real owner. It may be so, but it is not conclusive and must be looked at with the other evidence. 7. May 1856 or 1857 (two documents on the record giving different years) Imambandi Begum had obtained a decree against Bohu Begum for a large sum of money. In execution of that decree an order for the attachment of the disputed property was made on the 18th of May 1861, but the actual attachment was not made till the 27th January 1864. It was probably the apprehension when the property had been transferred into the name of Bohu Begum of this decree being executed that led to the transfers to Mussiti and Hosseini. That proceeding was temporarily successful, for on their intervention the property attached was released on the 6th December 1864. Bohu Begum had died in October 1864, and on the 29th November 1865 Imambandi brought a suit against her brothers and heirs, and Mussiti and Hosseini, to have the order of the 6th December 1864 set aside, and for a declaration that the property was liable to be sold in execution of her decree. In this she was successful, and, having made a fresh application for execution, some of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khans, but they thought that until the Raja refused to pay the rent to them they were in constructive possession of the property through him. 9. Both Judges found that there was no payment of rent to Isa Khan till after April 1866, and consequently no adverse possession, and held that the suit was not barred by the law of limitation. The law applicable is Article 144 in the second schedule of Act XV of 1877, which makes the period of limitation (12 years) run from the time when the possession of the defendant becomes adverse to the plaintiff. The Subordinate Judge thought that Isa Khan got into possession by receipt of the rent from the Raja through Mussiti, but he was unable to fix the time when he did so, and their Lordships see no reason for doubting the correctness of Mr. Justice Mitter's opinion that Isa Khan did not assume adverse possession through Mussiti till the end of 1869. 10. The other Judge, Mr. Justice Maclean, was of opinion that in the absence of clear proof of payment by the Raja to Isa Khan, Bohu Begum, and after her brothers were in possession as late as April 1866. The Judges therefore held that the suit was not barred by the law of limitation. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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