PROKASH CHANDRA MUKHERJEE & ORS. versus SARADINDU KUMAR MUKHERJEE & ORS.

Citation: [1971] 3 S.C.R. 666 · Decided: 04-02-1971 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Dismissed

Judgment (excerpt)

666 
PROKASH ~HANDRA MUKHERJEE & ORS. 
v. 
SARADINDU KUMAR MUKHERJEE & ORS. 
February 4, 1971 
(G. K. MITTER AND A. N. RAY, JJ.] 
Defence of India Act, 1939 and Rules, r. 15-A-Requisition and posses-
sion h.v Government-Period, whether could be tacked for purposes of 
Umitation by person to whom possession was restored. 
P/eadings-pr•yer for possession-When can be inferred. 
The plaintiff became a co-sharer with the defendant in the suit property 
in the year 19411 as a result of some corveyances by members of the 
defendants' family. The property was in the occupation of military autho-
rities by requisition under the Defence of India Act, 1939, and the Rules 
made thereunder, for four years from 1942 to 1946. .The defendants were 
in exclusive possession thereafter from 1946 to 1955 when the ,plaintiff 
filed a suit for partition and possession of his share. 
· 
On the question whether the suit was ba~red by limitation under art. 
144 of Limitation Act, 1908, on the plea that as the military autholrities 
had taken possession ofthe property from the defendants and had restored 
the possession to them in 1946-the possession of the said authorities was 
really under or on behalf of the defendants without causing an)' break in 
the continuity of their, posse~sion, 
HELD ;. The possession of the Government was neither by permission-
of the defendants nor in the character of an agent of the defendants. The 
orders of requisition, relinquishment of possession and payment of com-
pen91ttion under the Defence of India Act read with Act and the Rules 
show that the possession was taken l>y Virtue of the powers under the 
Act a~d the Rules irrespective of any consideration as to the rights of the 
true owner Or the occupier __ who could make a claim to compensation. 
Therefore, possession of Government by requisition under rule 75-A can-
not enure for the 1i>enefit of the person who was in possession before, for 
lhe pmpose of enabling such person to acquire 
a prescriptjve title. 
f669 E-F; 670 B-Dl 
Karan Singh v. Bakar Ali Khan, 9 I.A. 99, applied. 
A 
B 
c 
D 
E 
F 
Boi>ett v. South Eastern Railway Co. [1882] 9 Q.B. 424 and Dagdu v. 
Ka/u, 22 Bombay 733, explained. 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 
1966. 
Appeal by special leave from the judgment and decree dated 
June 26, 1964 of the Calcutta High Court in Appeal from Appel-
late Decree No. 1011 of 1962. 
· S. V. Gupte and D. N. Mukherjee, for the appellants .. 
H 
' , 
, 
A 
B 
P. c. MUKHERJEE v. s. K. MUKHERJEE (Mitter, J.) 
667 
Bislum Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 
2(d), 2(f) and 2(g). 
The Judgment of the Court was delivered by. 
Mitter, J. The main question in this appeal is, whether the 
defendants-appellants perfected their title to the property in res-
pect of which partition was claimed by the plaintifls by adverse· 
possession for the prescriptive period of twelve years or more. 
The relevant facts are as follows. The parties are all descen-
dants of one Durgadas Mukherjee who died many years back, 
leaving six sons and inter alia the property which is the subject 
.. 
C 
matter of this litigation, recorded as Dag No. 444 Khatian No. 
72 in Mauja Barasat, District 24 Parganas during the last Cadas-
tral survey. Of the two plaintiffs the first Saradindu is a great 
grandson of the said Durgadas Mukherjee of the branch of the 
youngest son, his co-plaintill' being a grandson in another branch. 
The defendants belong to other branches of the said family. The 
D 
first plaintiff based his title on several conveyances from other 
members of the family as also purchase at an execution sale of 
a fractional interest of the members of the branch of Bama Charan, 
the second son of Durgadas. The second plaintill' claims by in-
heritance. Tue property consists of . 34 acres together with two 
structures th\lreon which are quite separate from each other. One 
E 
portion of the structures i.e. that to the east, popularly known as 
Bamacharan Babu's Bati is a fairly commodious building with 
a separate municipal number. The other structure in the western 
portion known as Baitakhana Bati was and is admittedly the-joint 
property of the descendants of Durgadas with a municipal number 
of itS own. The plaintill's claim that the land and the two build-
ings are joint property while the contesting defendants, some of 
F 
whom ·are appellants before this Court, claim exclusive title to 
the said eastern building with the land on

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