MUHAMED HUSSAIN MOHIDEEN MADANI Vs. MUHAMMED IMMAMUDHIN SAHIB

JUDGEMENT

(1.) THE third defendant in O. S. 250 of 1960 on the file of the Court of the District munsif, Dharapuram who succeeded before the trial Court, but lost before the first appellate Court is the appellant herein. The first respondent herein instituted the suit for partition and separate possession of his share in the suit house with further damages at the rate of Rs. 2 per month. The suit came to be instituted in the following circumstances. Admittedly the suit property originally belonged to the husband of the second defendant, whose son is the first defendant. On the death of the original owners of the property, the first defendant as the son and the second defendant as the widow succeeded to the property. The first respondent herein had obtained a decree against the first defendant in S. C. No 424 of 1951 on the file of the Court of the District Munsif, Dharapuram and in execution of that decree brought the suit property to sale and purchased it as evidenced by the sale certificate Ex. A-1, dated 8-9-1958. When he sought to take possession of the property, he was obstructed by the appellant herein. The case of the appellant was that the original owner of the property had orally sold the property to the second defendant for the dower due to her, that the second defendant in turn had sold the property to the appellant under the original of Ex. B-3 dated 7-11-1958 and that consequently the appellant became entitled to the property. The learned District munsif of Dharapuram in E. A. 1575 of 1958 passed an order D/- 19-6-1959, dismissing the application. However, he held that even according to the first respondent, he was entitled only to an undivided share in the suit house and consequently he was not entitled to actual delivery of possession and therefore it was not necessary to go into the question of title of the obstructors or their vendor. Having come to this conclusion, the learned District Munsif pointed out-

(2.) AS far as the finding of the learned Additional Subordinate Judge, on the question as to the plea or oral sale as well as the plea of adverse possession put forward by the appellant herein are concerned, in my opinion, they are essentially findings on questions of fact and they are amply supported by evidence. As far as the oral sale is concerned, the finding is one of pure fact and therefore so long as the finding is supported by evidence, its correctness cannot be challenged in the second appeal. As far as the question of adverse possession is concerned, once the oral sale is found against, the first and second defendants would be in the position of co-owners and unless ouster on the part of the second defendant is established, the appellant cannot succeed on the plea of prescription of title by adverse possession and such ouster has not been established in the present case. Therefore, the only question that survives for consideration in the second appeal is, whether the suit instituted by the first respondent is barred by Article 11-A of the first Schedule to the Limitation Act, 1908, as contended by the appellant or not.

(3.) I am clearly of the opinion that the conclusion of the learned Additional subordinate Judge that the suit is not barred by limitation is correct. I have already extracted the terms of the order in Ex. A-2. That order clearly shows that the learned District Munsif, Dharapuram who disposed of E. A. 1575 of 1958 did not go into the question of title and left open the question to be decided in a suit for partition that might be instituted by the present first respondent. On the other hand, the learned District Munsif directed symbolical delivery of possession to the first respondent herein, as he happened to be the purchaser of a share of the property and under Ex. A-3, the first respondent actually obtained symbolical delivery of possession. Under these circumstances, the question for consideration is whether the suit is barred by Article 11-A of the First Schedule to the Limitation act, 1908. That Article is as follows-Description of suit Period of Limitation Time from which period begins to run 11-A By a person against whom an order has been made under the Civil procedure Code, 1908, upon an application by the holder of a decree for possession of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder, or purchaser, to establish the right which he claims to the present possession of the property comprised in the order One year the date of the order from the very entry is column (1) of the Article, it is clear that the suit must be one to establish the right which the plaintiff claims to the present possession of the property dealt with by that order. The reason for this is that the relief which was denied to the plaintiff in the summary proceedings by the executing Court is the same as the one which is sought to be agitated in the suit subsequently filed. Order 21, Rule 103, C. P. Code states-