BEHARI LAL Vs. DAL CHAND AND ORS.

JUDGEMENT

(1.) ISHAR Singh Defendant 1 mortgaged with possession for a sum of Rs. 2400 the house in dispute to Bohru Mal Mahajan by means of a registered deed dated 17 -8 -1928, Ex. D -2, and he mortgaged on 6 -12 -1933, a haveli for Rs. 3000 by means of Ex. D -l. Behari Lal, who is the son of Ishar Singh, brought a suit on 27 -10 -1945 for declaration to the effect that these mortgages were not binding, on him and that an injunction may be issued to Defendant 2, the mortgagee restraining him from interfering with the Plaintiff's possession of the said property. It was nowhere alleged that the possession had been taken or if it had been taken when it had been taken. The defence inter alia was that the suit was barred by time. The trial Court held the suit to be barred by time and this finding was affirmed by the learned District Judge. The Plaintiff has come up in appeal to this Court.

(2.) THE Plaintiff submits that the finding of the learned District Judge is wrong because he was less than twenty -one years of age when he brought the suit. The evidence which was produced by the Plaintiff was of five witnesses including himself. P.W. 1, Nanak Chand prepared his horoscope but the horoscope was not produced in Court. Plaintiff's witnesses Nos. 2, 3 and 4 are old men of the village and they have variously stated that the age of the Plaintiff on the date they were giving evidence was 21 or 22 years or it was 20 or 21 years. The statement of the Plaintiff himself was that he was 20 or 22 years of age on the date he was giving evidence which was in 1947. The learned District Judge relied on a birth entry made in the school register, Ex. D.W. 3/1, and Mr. Pandit has submitted that the evidentiary value of this register is very little and that the learned District Judge has not considered his evidence with regard to age. The onus of proving that the Plaintiff was less than 21 years of age on the date be filed the suit was on him and, in my opinion, on the evidence that he has led it is not possible to hold that he has discharged the onus. In my opinion, therefore, the learned District Judge rightly held that the Plaintiff has not proved that he was twenty -one years of age or less on the date when he filed the suit. The learned Counsel then submitted that in any case the second alienation of 6 -12 -1933 would be within time on the date when he filed the suit. The article applicable according to the learned advocate is 126 of the Limitation Act which provides:

(3.) IN col. 3 of Article 126 the words used are "when the alienee takes possession of the property". In my opinion, this article applies to those suits where the alienee has taken possession and has no application to those where the possession has not been taken. In Rustomji's Limitation Act at p. 1092 it is said under this article: