BANSGOPAL Vs. DALCHAND

JUDGEMENT

(1.) THIS is plaintiff's appeal from the decree dismissing his suit for joint possession.

(2.) THE subject -matter of the suit consists of two occupancy fields Nos. 12 and 39 of Mouza Sihora. They were acquired by Mulchand, father of the plaintiff. The lower appeal court has found that Moolchand gave half share in the fields to Mahadeoprasad in the year 1914 on condition that he would cultivate the fields, pay the rent and give half share of the produce to him. Moolchand died in the year 1918 and the plaintiff as his successor settled the land with Mahadeoprasad on the same terms, Mahadeoprasad died in 1939 and the same arrangement continued between his brother and successor Sahdeoprasad and the plaintiff. The lower appeal Court also found that the plaintiff was receiving his share of the crops till the year 1943.

(3.) ACCORDING to the lower appeal Court the plaintiff was excluded from possession during the period 6 -12 -1944 to 24 -12 -1947 and thus the suit was barred by limitation. This finding is contested in this appeal. It was not disputed before me by the counsel for the defendants that the further question as to whether Sec. 41 of the Transfer of Property Act operated as a bar to the plaintiff's claim did not arise from the pleadings and could not, therefore, be the subject for decision by the lower appeal Court. The finding thereon must therefore be ignored.