RAMBHA BEWA Vs. PRAHALLAD SENDHA

JUDGEMENT

(1.) THE unsuccessful plaintiff filed this appeal against an order of the District Judge cuttack dated 19-10-195-1, dismissing his suit. Of the parties to this litigation, defendant 1 was the auction-purchaser of a part of the holding measuring 1. 045 acres. Defendants 4 and 5 are the first cousins of the plaintiffs deceased husband and defendants 2 and 3 are purchasers of portion of the holding in dispute from defendants 4 and 5. Defendant 6 is the landlord of this holding.

(2.) THE plaintiff commenced a suit for partition under these circumstances: The disputed holding measuring 2. 03 acres was the ancestral property of the plaintiff's husband and defendants 4 and 5 were his first cousins. The plaintiff's whole case was that there was a severance of the joint family status between the two branches of the family and each branch, for purposes of convenience, was in actual possession of parts of the holding separately. There had never been a partition by metes and bounds. According to the plaintiff certain lands out of the ancestral holding were sold separately by her husband and by defendants 4 and 5 to defendants 2 and 3 on several occasions. They have been shown in schedule Kha measuring 0. 71; acres and the rest of the land is in dispute measuring 1. 32 acres as given in detail in schedule Ka. The landlord defendant 6 instituted a suit for arrears of rent against her husband and defendants 4 and 5. The husband of the plaintiff died issueless during the pendency of the suit and no steps were taken for substituting the plaintiff as his legal representative. Eventually a decree was passed in the rent-suit against defendants 4 and 5 and a part of the holding measuring 1. 045 acres was put to sale in execution of that rent-decree and ultimately was purchased by defendant 1. Defendant No. 1 got delivery of possession through court on 14-12-1938. The plaintiff, thereafter filed two petitions (1) under Order 21, Rule 90 and (2) another under Order 21, Rule 100, C. P. C. , but without any success. The first petition under Order 21, Rule 90 was dismissed for default and the second petition which was filed on 27-3-1939, was substantially dismissed for non-prosecution, on 28-21940, thereafter tho plaintiff filed the present suit on 3-2-1950, claiming partition of the Ka schedule property and mesne profits.

(3.) THE defendant No. 1 alone contested the suit. His defence was that there had been no severance of the joint family status between the plaintiff's deceased husband and defendants 4 and 5 and consequently defendants 4 and 5 became full owners of the holding after the death of the plaintiff's husband which admittedly took place long before the Hindu Women's Rights to Property Act came into force. It was further averred that in view of the previous petitions under Order 23, Rule 90, C. P. C. having been dismissed the suit was barred under Article 11a of the Limitation Act read with Order 21, Rule 103 of the Civil Procedure Code.