GANESH NARAYAN KULKARNI Vs. GANESH RAMCHANDRA JOSHI

JUDGEMENT

(1.) THIS is an appeal by the original plaintiff against the judgment dated 18th June 1962 of the learned Second Extra Assistant Judge, Sholapur, confirming the dismissal of the suit of the plaintiff by the learned Civil Judge. Junior Division, Mangalwedha. The learned Second Extra Assistant Judge has, however, dismissed the appeal of the plaintiff only on the ground that the suit was barred under Article 11-A of the Indian Limitation Act, 1908.

(2.) THE facts leading to this litigation may be briefly stated as follows:--The suit from which the present appeal arises was for possession of a house bearing Municipal No. 401 at Mangalwedha in Sholapur District and for mesne profits based on title as purchaser from the plaintiff's predecessor. This property, prior to the said purchase, belonged to one Watave. The defendant No. 1, according to Watave, was his tenant under a lease for 11 months. In 1953 Watave filed against the defendant No. 1 Civil Suit No. 4 of 1953 for eviction alleging that he had determined the lease of the defendant No. 1. The said suit was decreed by the trial Court. The defendant No. 1 appealed to the District Court. The said appeal, being First Appeal No. 439 of 1953 was dismissed. Thereafter Watave filed Dar-khast No. 8 of 1955 for execution of the decree for eviction against the defendant No. 1, We might mention that the defendant No. 2 is the brother of the defendant No. 1 and the defendant No. 3 is their mother. When warrant for possession was taken for execution, the defendant No. 2 obstructed. Watave filed an application under the provisions of Order 21, Rule 97 of the Civil P. C. for removal of obstruction, being Miscellaneous Application No. 2 of 3955. The defendant No. 2 contended that he had separated from his brother, the defendant No. 1, in 1944. He further contended that the suit premises were in hia occupation independently of the defendant No. 1 and not under the defendant No. 1. He, therefore, contended that the decree could not be executed against him. This contention was upheld by the trial Court by an order dated 4th April 1957 and the Darkhast filed by Watave was dismissed. Watave appealed to the District Court and on 11th October 1957, the said appeal was dismissed on the ground that the order was not appealable. 2a. Thereafter by a sale deed dated 25th March 1958, Watave sold the property to the present plaintiff. On 10th October 1958, the present plaintiff filed the suit from which the present appeal arises for a declaration of his title to the house bearing Municipal No. 401 at Mangalwedha and for possession. As we will show by reference to the plaint itself, the plaintiff did not contest the order dated 4th April 1957 made in execution proceedings against his predecessor-in-title, Watave. The defendant No. 1 filed his written statement in the said suit in which he contended that he had nothing to do with the suit premises and that the defendant No. 2 was in possession independently of him as their owner. He also affirmed that in 1944 the two brothers had separated. In his written statement the defendant No. 2 contended that there had been a partition between the brothers in 1844 and that he was in possession of the suit premises ever since 1944. He claimed that he had been in adverse possession for a period exceeding 12 years and had become owner of the suit property. He further contended that the sale deed dated 25th March 1958 executed by Watave in favour of the plaintiff was champertous and, therefore, void. He also contended that the plaintiff's suit, not having been filed within a period of one year from 4th April 1957, was barred by law of limitation under Article 11-A of the Indian Limitation Act, 1908. The defendant No. 3 in her written statement supported the case of the defendant No. 2. 2b. The trial Court held the title of the plaintiff proved. It also held that the plaintiff or his predecessor-in-title had been in possession of the suit property within a period of 12 years of the date of the suit. It held that the sale deed in favour of the plaintiff was not champer-tous. It also held that the defendants Nos. 2 and 3 had not acquired any title by adverse possession. It, however, held that the suit was barred under the provisions of Article 11-A of the Indian Limitation Act. 1908 and it, therefore, dismissed the suit Against the said decision, the plaintiff appealed to the District Court. The learned Second Extra Assistant Judge hearing the appeal decided only one point that of limitation and held that the suit was time-barred. He, therefore, dismissed the appeal the other findings of the trial Court were left to stand. Against the said decision, the plaintiff has filed the present second appeal.

(3.) MR. R. B. Kotwal, appearing for the plaintiff-appellant, has taken only one point before us. He has contended that the suit filed by Watave, viz. , Civil Suit No. 4 of 1953 against the defendant No. 1 was a suit for eviction filed by a landlord against his tenant on the termination of the tenancy. In execution of the decree against the tenant, the defendant No. 2 had contended that he did not hold possession under the tenant but independently. The obstructionist notice was, therefore, dismissed. Mr. Kotwal contended that the present suit was brought by a purchaser from Watave based purely on title and for recovery of possession based on title. He contended that Watave could have maintained such suit. The point he made was that the present plaintiff had filed the suit from which the present appeal arises in a right different from that claimed by Watave either in Civil Suit No. 4 of 1953 or in execution proceedings arising therefrom. Mr. Kotwal drew our attention to the plaint in the present suit. In para 2 of the plaint the plaintiff avers that the suit premises were owned by Sadashiv Vyankatesh Watave and that the plaintiff had purchased the same from Watave on 25th March 1958 for Rs. 400/ -. He avers that the defendants Nos. 2 or 3 had no right or interest whatsoever in the said premises and the plaintiff was, therefore, entitled to recover possession of the said premises from the defendants Nos. 2 and 3 according to the aforesaid sale deed and as the defendants Nos. 2 and 3 were obstructing the plaintiff, the plaintiff was filing this suit for recovery of possession of the suit premises in his right of ownership against the defendants Nos. 1 to 3, In para 3 of the plaint the plaintiff claims that the cause of action arose on the day when the plaintiff bought the suit premises from Watave, viz. , 25th March 1958. In para 4 of the plaint the plaintiff valued the claim in the suit at Rs. 400/- which was the amount for which he had bought the suit premises. The praver clauses are contained in para 5. In the same the plaintiff claims the relief of possession in the right of ownership against the defendants Nos. 1 to 3 and certain other reliefs. In the entire plaint there is no reference to the order in execution dated 4th April 1957 passed in Civil Suit No. 4 of 1953. The said order has not been contested in the plaint and there is no prayer for setting it aside.