PUDDIPEDDI LAXMINARASAMMA Vs. GADI RANGANAYAKEMMA

JUDGEMENT

(1.) THE unsuccessful plaintiff in both the courts below is the appellant--in this second appeal,--from a confirming decision of the learned District Judge, Ganjam boudh, whereby he affirmed a decision of the learned Munsif of Berhampur, and dismissed the plaintiffs suit for partition of 2/5ths share of the suit properties (being the properties of defendants 2 to 9, 14 and 15), purchased by the plaintiff from an auction purchaser at court sale in execution of a mortgage decree, on the ground that the suit is barred by limitation, in the circumstances hereinafter stated.

(2.) THE facts,--few and simple,--are these; On April 23, 1940 defendant No. 1 had purchased the suit properties (being dwelling house (tiled) with lands appurtenant thereto) at Court auction sale in execution of a certain mortgage decree; on April 26, 1940 the sale was confirmed; on September 17, 1941 the sale certificate was issued; on April 20, 1943 delivery of possession is said to have been given to the purchaser in Dakhaldehani proceedings in the execution case arising out of the said mortgage decree. On April 16, 1955 the plaintiff purchased the suit property from the defendant 1, the auction purchaser at court sale, who was the decree-holder in the mortgage decree; on April 18, 1955 the sale deed under which the plaintiff purchased from the defendant No. 1, was registered; on the following day on April 19, 1955 the plaintiff filed the suit for partition of the said undivided 2/5ths share in the suit properties, which the plaintiff had purchased from defdt. No. 1, the auction purchaser at court sale. The decree taken in the suit, was that the suit was barred by limitation. Both the courts below accepted the defence point of limitation and dismissed the suit. Hence this second appeal.

(3.) ON the question of limitation, which is the only point urged in this second appeal, it was contended on behalf of the plaintiff-appellant, that the plaintiff's vendor the auction purchaser at court sale had purchased the 2/5th share in the suit properties, which belonged to the judgment- debtor and thus the auction purchaser (plaintiffs vendor) became a co-sharer in respect of the suit property; if he is found to be a co-sharer then there is no question of adverse possession under Article 144 of the Limitation Act which, according to the defendants, is the article applicable to this case. For convenience of ready reference Article 144 is set out as follows: "144. For Twelve When the possession of years possession immoveable of the properly or any defendant interest therein not become hereby otherwise adverse to specifically provided the for. plaintiff. " the plaintiffs point is that there can be no adverse possession unless there is ouster, that is, assertion of hostile title followed by hostile possession; in the present case, according to the plaintiff, there is no question of either hostile title or hostile possession. The plaintiff relied on the position that the defendant No. 1 the auction purchaser at court sale from whom the plaintiff purchased could apply for delivery of possession of what he purchased under Order 21, Rules 95 and 96, civil procedure Code.