RAJASEKARAN GRAMANI Vs. NAGARATHINAMMAL

JUDGEMENT

(1.) THE appeal is at the instance of the third defendant in the suit, who is the brother of the plaintiff. THE first defendant is another sister of the appellant. THE second defendant was a brother, who died after the filing of the suit. Defendants 4 to 17 are alienees.

(2.) THE first defendant filed a suit O. S. No. 150 of 1960 on the file of the Second Additional Sub Court, Cuddalor e , for partition and separate possession of her l/4th share. THE plaintiff and defendants 2 and 3 were defendants in that suit. Defendants 2 and 3 contested the suit. A preliminary decree was passed on 30. 9. 1961 granting 1/ 4th share to the plaintiff. THEreafter, a final decree was passed on 14. 11. 1962. That was done after a Commissioner visited the properties and submitted a report containing a scheme of division. Based on that report, a final decree was passed.

(3.) THE court below is clearly in error in holding that the suit was in time. Sec. 3 of the Limitation Act prescribes that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defenc e. In the present case, the plea of limitation has been raised by the third defendant in the written statement. Even if the third defendant had been absent on the date of trial, it is the duty of the court to have considered the question of limitation with reference to the various Articles of the Limitation Act and the relief s prayed for by the plaintiff. Art. 59 of the limitation Act provides for cancellation or setting aside of instruments or decrees. THE period of limitation is three years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled first become known to her. We have already referred to the allegations made in the plaint. THEy are vague and it has not been set out clearly as to when exactly the plaintiff came to know of the facts entitling her to set aside the decree if at all. THE evidence of the plaintiff is in no way better. She has admitted in the chief-examination that she was living with the first defendant, who was the plaintiff in the earlier suit. She claims that she did not know that an application was filed for passing of final decree by the first defendant herein. She claims that no summons was received by her in the final decree proceedings. She alleges that she came to know that good lands had been allotted to the first defendant in the final decree.