CHINTHLAPUDI NARAYANA Vs. RAMISETTI MAHALAKSHMAMMA

JUDGEMENT

(1.) Defendants in O.S. No.96 of 1986 on the file of the Court of District Munsif, Huzurnagar are the appellants. For the sake of convenience, the parties would be referred to as they are arrayed in the Trial Court.

(2.) Plaintiff filed the suit for partition of the plaint schedule property (suit property) into five equal shares and for allotment of one such share to her, alleging that consequent on the death of her mother C. Anasuryamma about 15 years prior to the suit, she and defendants, who are her father, brothers and sister, became entitled to l/5th share each in the suit property, which was the 'Stridhana' property of her mother, and that fifth defendant, who was subsequently added as a party to the suit, is not entitled to a share in the suit property as he went away in adoption, and defendants, who were delivering about ten bags of paddy every year towards her share in the suit property, stopped giving her share from a few years, and so she does not wish to keep the suit property joint with the defendants. On behalf of defendants, first defendant, who is the father of the plaintiff and defendants 2 to 5, filed his written statement inter alia contending that since his wife Anasuryamma died about 20 years prior to the filing of the suit and since he has been in continuous possession and enjoyment of the suit property in his own right, he became entitled to the same and so the plaintiff is not entitled to any share and in any event, the suit is bad for non-joinder of the fifth defendant, because his alleged being given away in adoption is not true. The other defendants adopted the written statement of the first defendant. On the basis of the pleadings, the Trial Court framed seven issues for trial. In support of her case, plaintiff examined herself as P.W.I and three other witnesses as P.Ws.2 to 4 and marked Exs.A-1 to A-14. On behalf of defendants first defendant examined himself as D.W.1 and examined two other witnesses as D.Ws.2 and 3 and marked Exs.B-1 to B-3. Ex.X-1 was marked through a witness. The Trial Court held that the suit is not bad for non-joinder because fifth defendant, the brother of the plaintiff, who was not actually given away in adoption, was subsequently added as a party to the suit, and that Anasuryarnma, the mother of the plaintiff, died about 20 years prior to the filing of the suit, but not about 15 years prior to the filing of the suit as contended by the plaintiff, and that the suit is properly valued for payment of Court Fee and it has pecuniary jurisdiction to try the suit and since the suit is not filed within twelve years from the date of death of Anasuryamma, the same is barred by limitation as per explanation (b) to Article 65 of the Limitation Act, 1963 (the Act), and so the plaintiff is not entitled to claim a share in the suit property and dismissed the suit. On appeal by the plaintiff in A.S.No.1 of 1991, the learned Subordinate Judge, Miryalaguda reversed the finding of the Trial Court and held that the suit is not barred by limitation and that the plaintiff, who is entitled only to 1/6th share in the suit property, is entitled to seek partition of her 1/6th share. Hence this second appeal by the defendants.

(3.) The point for consideration is whether the suit is barred by virtue of explanation (b) to Article 65 of the Limitation Act?