ANAND KUMARI Vs. RADHA BALLABH

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of concurrent decrees passed by the courts below dismissing the suit filed by the appellants for possession over a room and a kothri in the ground floor portion of a house and another kothri towards the eastern side of the first floor of that house detailed at the foot of the plaint.

(2.) SHORTLY stated, the plaint case was that the house in question alongwith four shops and certain other properties belonged to one Babulal. After the death of Babulal, a partition took place between the widow and her sons and in that partition the property in suit came to the share of her five sons. Two fifth share in this house belonged to her sons Satya Narain and Radha Ballabh. That share was sold in execution of a decree passed in suit no. 428 of 1951 brought by one Nanumal against Satya Narain and Radha Ballabh and the same was purchased by one Ram Prasad who sold it to the present plaintiff no. 1 namely Smt. Anand Kumari. The auction sale at which Ram Prasad purchased the two fifth share of Radha Ballabh and Satya Narain was confirmed on 3-10-53 and on the same day a sale certificate was issued in his name. Subsequently symbolical possession was delivered to Ram Prasad through court over the entire house on 17-10-62. Ram Prasad thereafter sold the properties purchased by him on 12-8-66 in favour of the plaintiff no. 1. The defendant Radha Ballabh, however, forcibly occupied the room and the kothri in question without any right or title. Hence this suit.

(3.) FOR the appellant it is contended that the view taken by the lower appellate court that the suit is barred by limitation is manifestly unsustainable in law. The delivery of symbolical possession in favour of Ram Prasad on 17-7-62 had the effect of interrupting the period of limitation which had begun to run against him with the confirmation of the auction sale and the view expressed to the contrary by the courts below is incorrect. The other contention raised by the learned counsel is that inasmuch as all the co-sharers had joined in bringing the present suit the plaintiffs had become entitled to a decree for possession and the courts below are not right in taking the view that in order to claim that relief, the plaintiff no. 1 had first to get her share separated by means of a suit for partition and only thereafter could he bring a suit for possession provided the disputed property in respect of which possession is claimed falls to his share,