JANARDAN SARAJ Vs. NILKANTHA SARAF

JUDGEMENT

(1.) This is an appeal by the unsuccessful plaintiff in a suit for partition and possession of eight annas share in the properties described in Ka, Kha, and Ga schedules of his plaint. The plaintiff is the son of one Ganda who had a brother named Khageswar. Defendants 1 to 3 are the sons of Khageswar. The plaintiff originally included, in schedule Kha of his plaint, some properties belonging to another branch, namely, those of his grandfather's brother, but he gave up his claim to these properties even in the Trial Court. The suit was therefore confined to the properties included in schedules Ka and Ga of the plaint. The plaintiff alleged that he was a year or a year and a half old when his father, Ganda, died and that he was living, ever since his birth, at Gopalpur, and that the properties jointly belonged to his father and his uncle Khagesar and were never partitioned. He accordingly claimed an eight annas share in the family properties. The plaintiff also relied upon Ex. 1, a registered notice which he served upon the defendants on 14-6-38 claiming partition. The defendants relied upon an agreement executed by the plaintiff's mother, under Ex. C, dated 17-5-28, whereby she surrendered all the interests in the family property which the plaintiff had, and left the village. Relying on the document Ex. C. therefore, the defendants claimed that the plaintiff's suit was barred by limitation under Articles 44 and 144 of the Limitation Act, and that they had perfected their title to the suit properties by adverse possession since the date of Ex. C.

(2.) The learned Munsif held that Ex. C relied on by the defendants was not a genuine document, that it was not a valid document as it was not registered, and that accordingly the plaintiff was not bound by it and was consequently entitled to a share in the family properties. He therefore granted a decree for partition. On appeal, the learned Subordinate Judge differing from the finding of the trial Court, held that the document Ex. C was a genuine document and that the defendants had perfected their title by adverse possession since the year 1928. He accordingly upheld the defendants' contention that the plaintiff's suit was liable to be dismissed under both Articles 44 and 144 of the Limitation Act and set aside the decree of the Trial Court. It is against this reversing judgment of the learned Subordinate Judge that the plaintiff has come up in second appeal.

(3.) The main contention, addressed on behalf of the appellant in this Court, is that Ex. C not being a registered document is a void document, that it is no evidence of transfer of property, and should not have been relied upon. It is contended that the plaintiff is therefore not bound to have it set aside within three years of his attaining majority under Article 44 of the Limitation Act. There is, much force in this argument, but even assuming it to be correct, the plaintiff has yet to prove that his suit is within time. Admittedly he lost possession in the year 1928. The suit was filed on 25-9-1945, that is to say, seventeen years after he lost possession. The finding of both the Courts below is that the plaintiff attained majority sometime in 1935. The latest date on which he should have filed the suit for possession is twelve years after 17-5- 1928, the date of Ex. C. Mr. Chatterji, learned counsel for the appellant, however, contends that the period of twelve years should commence from the date of his attaining majority, i.e., 1935 as prescribed under Article 144 relating to recovery of possession of immovable property. This contention is apparently based on a reading of Section 6 of the Limitation Act. Section 8, however, which is in the nature of a proviso to the preceding sections says that the plaintiff cannot have more than three years after attaining majority for filing a suit for possession in cases where the period of limitation has already expired during his minority, if the two sections are read together, it cannot be seriously contended that the plaintiff could claim any period longer than twelve years after the possession of the defendants became adverse.