BADRILAL PATIDAR Vs. KANHAIYALAL

JUDGEMENT

(1.) THE only issue urged in support of this second appeal filed under Section 100 of CPC by the defendant against the judgment/decree, dated 31-1-2001, passed by learned IInd Additional District Judge, Neemuch in C. A. No. 12-A of 1998, which in turn arises out of Civil Suit No. 45-A of 1982, decided on 28-1-1998, by Civil Judge, Class II, Neemuch, was that the First Appellate Court was not justified in deciding the issue of limitation in favour of plaintiff. In other words, the submission of learned Counsel for the appellant (defendant) while impugning the judgment/decree of First Appellate Court was that the suit filed by the plaintiff claiming 1/3rd share in the suit properties and for effecting partition and separate possession should have been held to be barred, because of the same not having been filed within three years from the date of accrual of cause of action. It is this submission which was repelled by the First Appellate Court by holding the suit to be maintainable and within limitation.

(2.) HEARD Shri B. K. Joshi, learned Counsel for the appellants on the question of admission.

(3.) IN my view, no interference in the impugned judgment inter alia holding the suit to be in time, can be made. It is not in dispute that parties to the suit are closely related to each other being the members of one family. The plaintiff claimed his 1/3rd share in the suit property as against the defendant who claimed that the partition has already taken place inter se members of partition. The plea was not accepted on facts and the First Appellate Court returned a finding of fact that there has been no partition inter se members of family as alleged. It was also held that when there has been no partition inter se members of joint family, any member has a right to demand the partition and then file a suit which is governed by Article 110 of Limitation Act and not Article 58 as alleged by the defendant.