PREM NARAIN Vs. MAHABIR JAIN

JUDGEMENT

(1.) Heard Sri Dinesh Pathak, learned counsel for the appellant and Sri Vinod Kumar, learned counsel for the respondent.

(2.) This is plaintiff's Second Appeal against the Judgment and Decree dated 26.10.1989, passed by Ist Additional District Judge, Jhansi in Civil Appeal No.106 of 1986 and the dismissing the Appeal and confirming the Judgment and Decree dated 16.05.1986 passed by Civil Judge, Jhansi in Original Suit No.35 of 1985 (Prem Narain Vs. Mahavir Jain Uchchattar Madhyamik Vidhyalaya Ranipur, Jhansi). The plaintiff- appellant instituted an Original Suit No.35 of 1985 before the learned Trial Court, praying for cancellation the sale deed dated 25.11.1974. Plaintiff's case is that he and defendant nos. 2, 3 and 4 belong to the same family, Shajra whereof is attached with the plaint; that the plaintiff and defendant nos. 2, 3 and 4 lived jointly till 1960; that the moveable and immoveable properties were divided between the parties in 1960 and they are accordingly in possession; that the plaintiff was entitled to half share and defendant nos. 2 to 4 were entitled to half share; that there was a plot in Mohalla Jhandapura Mauranipur area 20400 sq.ft. which was also partitioned in 1960; that the plaintiff got half of the same and the defendant nos.2 to 4 also got half area of the same; that the defendant nos. 2 and 3 sold an area of 69 feet x 42 feet in favour of Dayaram Kachi in 1965; that an area of 7302 sq. ft. remained but defendant nos. 2 and 3 have sold 17200 sq. ft. in favour of defendant no.1 on 25.11.1974 including the land belonging to the plaintiff; that the defendant nos. 2 and 3 have no right to sell out the land of the plaintiff without his consent and even without partition the defendant could have not sold more than half of their share in the land. The defendant nos. 2 to 4 did not filed any written statement in the suit, despite service of notice. One Sunder Lal submitted written statement on behalf of defendant no.1, stating that the in the partition in 1960, the defendant nos. 2 to 4 got 20400 sq.ft. of land; that the suit is barred by limitation and Section-34 of the Specific Relief Act and the defendant no.1 is entitled to protection of Section-41 of the Transfer of Property Act as he is bonafide purchaser for value without notice. The learned trial court on the basis of the pleadings of the parties framed the following issues,

(3.) The learned trial court by the judgment and decree dated 16.05.1986 dismissed the suit of the plaintiff. A Civil Appeal No.106 of 1986 was preferred by the plaintiff before the lower appellate court which did not framed any issue of determination and decided the issue of limitation, against the plaintiff. The finding of the trial court regarding the defendant no.1 not being bonafide purchaser for value without notice was confirmed. Suit was held as not barred by non-joinder of necessary party and the theory of partition of the property set up by the plaintiff was accepted as correct and finding was recorded that the disputed sale deed is invalid to the extent, it includes the share of the plaintiff's land. The finding of the trial court was not set aside regarding this issue. However the appeal of the plaintiff was dismissed on the ground of being barred by limitation. Aggrieved by the Judgments and Decrees of both the courts below, this second appeal has been preferred by the plaintiff. The learned counsel for the appellant has argued that the lower court has reversed all the findings of the trial court recorded against the plaintiff, except the finding of the suit being barred by limitation and therefore the only issue for determination in the second appeal is whether the suit of the plaintiff was barred bye law of limitation or not. This appeal was admitted on 06.02.1990 on the following substantial questions of law,