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TMI Blog1921 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... s became the purchasers on the 16th January 1904 The sale was confirmed on the 18th February 1904 and possession was delivered on the 10th April 1904. On the 30th January 1909 the plaintiff obtained settlement from the Raja, The defendant, however, disputed her right to take possession. This led to the institution of proceedings under Sections 107 and 145 of the Criminal Procedure Code whish terminated in an order made on the 28th September 1912 for attachment of the disputed lands under Section 146 of the Criminal Procedure Code, The plaintiff, thereupon instituted the present suit on the 9th October 1917 for declaration of her title to the attached land under the base granted to her on the 30th January 1999 and to the sums of money held by the Collector as Receiver from the date of his, appointment. There were two sets of defendants to the suit, namely, defendants Nos. 1 to 5 and defendants Nos. 7 to 12, The first set repudiated the claim on the ground that it was barred by limitation and that the decree for rent did not affect their rights under the lease of the 10th November 1874, The second set urged that they held tenancies subordinate to the lease of the 10th November 1874 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. W. 593 : 32 M. L. J. 505 : 2 C. W. N. 612 : 15 A. L. J. 398 : 25 C. L. J. 487 : 19 Bom. L. R. 480; (1917) M. W. N. 482 : 6 L. W. 117 : 22 M. L. T. 310 (P. C.). The intervention of the public authorities for the preservation of peace, operates in the same way as the vis major of the floods, and the constructive possession of the land is thereafter, if anywhere, in the true owner. While the Collector bolds possession for the benefit of the rightful owner, no possession on the part of the wrong doer, can, by legal fiction, be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner. From the standpoint, no question of limitation really arises, because less than twelve years elapsed between the confirmation of the rent sale on the 18th February 1604 and the attachment by the Magistrate on the 28th September 1912. If during the attachment, the seisin or legal possession is in the true owner, the attachment does not amount to either dispossession of the owner or the discontinuance of his possession. But it has been urged that this view cannot be reconciled with the decision in Deo Narain v. Webb (5). This may be conceded; it mast not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sutosh Maiti, a question baa been raised regarding the admissibility of the recital in the guardianship certificate, of the date when be would attain majority. Reference fees been made to the decisions in Sutis Chunder v, Mohendro Lal 17 C. 849 : 8 Ind. Doc. 1110 and Gunjra Kuar v Ablalh Panda 18 A. 4 8 :(1893) A.W.N. 158 : 8 Ind. Dec 1025. to show that such evidence would not be admissible under Section 35 of the Indian Evidence Act. These cases were doubted in Monindra Mohan Rcy v.' Ram Krishna 28 Ind.Cas 595 : 21 C. L. J. 621. where the recital in a guardianship certificate was held admissible under Section 32 28 C. 86 : 5 C. W. N.160 on an interpretation of the section which receives support from the decision of the Judicial Committee in Mahomed Syedol Ariffin v. Yeoh Ool Gark 39 Ind Cas 401 : 4 I. A. 262 : 21 C. W. N. 257; (1017) M. W. N. 162 : 19 Bom. L. R. 167; (1916) 2 A. C. 575 : 86 L. J. P. V. 15 : 115 L. T. 564 : 32 T. L. R 678 . and conforms to the earlier decisions in Ram Chandra Butt v. Jogeswar Narain Deo 20 C. 768 : 10 Ind. Dec. 511. Dhanmull v. Ram Chunder Ghose (12) 24 C. 167: L C. W. N, 270 : 12 Ind. Dec 844. and Oriental Government Security Life Assurance Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23) 28 M 396 : 1 M. L. T. 113, adapt, on the other hand, a stricter view. In the case before as, there is abundant evidence that Asutosh was aware of the rent-suit and of the execution proceedings consequent on the decree made therein. He never took steps to challenge the propriety of the decree up to the time of his death, which took place in 1915. In cur judgment, the decree made against him was not invalidated by the circumstance that he was misdescribed as a minor when he had in fast already attained his majority. The objection fails in so far as it is based on the ground that Asutosh was not properly before the court in the rent suit. 6. As regards the objection in respect of Sarat Chandra Maiti, it has been urged that he was not properly represented 'in the rent suit, as Ram Narain Maiti, his certificated guardian, was appointed guardian for the suit, notwithstanding that, upon service of notice, he did not appear to signify his acceptance of (he office of guardian ad I tern. It may be stated at the outset that the order-sheet in the rent-suit is not available at this distance of time, and it is not possible, from an inspection of the record, to ascertain whether Ram Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 B. 534 : 10 Ind Dec. (n. s.) 921, that the Civil Procedure Code did not empower a Court to appoint, a person against his or her will to be a next friend or gardain ad litem of a minor. Sir Michael Westropp, C. J., observed that the words "no other person fit and willing to act as guardain for the suit" in Section 453 of the Code of 1877 (as amended by Section 73 of Act XII of 1879) indicated that the Legislature did not intend to force the office of guardain ad titem on any person in indium, The same words were reproduced in Section 456 of the Cods of 1882 and now find a place in Order XXXII, Rule 4, Sub-rule (4) of the Code of 1903, These remark, however, were made with referenda to the appointment of a person as guardain ad litem who was not a certificated guardain, conseqently, the observations cannot be asumed to have been intended to apply to a person who had, on his own application, been appointed a guardian of the minor by competent authority." Indeed, in the case of Issur chunder v. Nobo Kristo (26) 7 C. L. R. 407. it was ruled, on the authority of the decisions in Dhondiba v. Kusa (27) 6 B.H. C. R. 219. and Buba.i v. Maruli (28) 11 B. H. C. R. 182. that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by his certificated guardian as guardian ad litem in the rent suit. This is clearly not a case like that of Tekait Krishna Prasad v. Moti Chand 19 Ind. Cas. 293 : 40 I. A. 140 : 40 C. 635 : 17 C. L. J. 572 : 17 C. W. N .687; (1913) M.W.N. 487 : 11 A. L. J. 517 : 15 Bom. L. R. 515 : 14 M. L. T. 37 : 25 M.L. J. 140 (P. C) where proceedings were taken in Court without notice to any one representing the minor. The decision in Nursing Narain v. Jahi Mittry 18 Ind. Cas 414 : 15 C. L J. 3 also is distinguishable. There the mother of the infant was proposed for appointment as guardian ad litem of her infant son ; she did not respond to the notice served upon her and yet the Court proceeded to appoint her, although the father was the, certificated guardian : see also Raghubar Dyal Sahu v, Bhikya Lal (33) 12 C. 69 : 6 Ind. Dec. (n. s.) 48. and Beni Prasad V. Laija Ram 35 Ind. Cas. 63 : 38 A. 452 : 14 A.L.J. 438. The objection against the decree in the rent-suit thus fails in so far as it is based on the ground that Sarat Chandra was not properly represented before the Court. 9. As regards the objection in respect of Bimala, there are no materials on the record to show whether she was in joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 : 12 Ind. Jur. 373 : 5 Sar. P. C. .1. 198 : 8 Ind Dec. (n. s ). where reference is made to the decision of the Judicial Committee in Dhurm Das Pandey v. Shami Soondri Dibiah 3 M I A. 22 , 6 W. R. P. C. 43 : 1 Suth P. C. J. 147 : 1 Sar. P. C. J. 271 : 18 E. B. 484, and of a Full Bench of this Court in Suresh Chunder v, Jagut Chunder Deb (43) 14 C. 204 : 7 Ind. Dec. (n. s.) 135., Tested from this point of view, there is no foundation for the argument that the tenancy was not adequately represented in the rent-suit and that the decree made therein did not operate as a rent-decree. The second ground urged by the appellants cannot, consequently, be maintained, 10. As regards the third point, it has been urged that the tenancies get up by the second set of defendants were real and rot tietitious as held by the Subordinate Judge. The pedigree get out above shows that defendant No. 7 is the sister of defendant No. 3, defendants Nos. 8 and 9 are the wives of defendant No. 2 and defendant No. 10 is the wife of defendant No. 1. These defendants allege that they are tenants under their relations, and that the tenansies were (treated in their favour shortly after the settlement was obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncurrence with the Subordinate Judge, that the tenansies in the names of the ladies were fictitious and that they were never in possession as tenants under the tenure-holders. The third ground, consequently, fails like the first and the second. 11. Finally, a question has been raised as to the identity of the lands in suit with the lands comprised in the lease of the 10th November 1874 and the sale certificate of the 18th February, 1904. This question was raised in the eleventh issue in the court below. The Subordinate Judge states in his judgment with reference to that issue that 'the disputed lands are admittedly included in the tenure and so they are included in the sale certificate." The appellants have, however, contended that this statement must have been made by the Subordinate Judge under a misapprehension and that no such admission was made before him. But this allegation is an unproved assertion which we are not prepared to accept. In the case of Damodar Narayan v. Dalglish 9 Ind. Cas. 913 : 38 I. A. 65 : 38 C. 432 : 13 C. L. J. 512 : 10 C. W. N. 311 : 9 M. L. T. 381 : 8 A. L. J. 411 : 13 Bom. L. R. 396; (1911) 2 M. 188 it appeared from the judgment of the Subo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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