UMRAO Vs. HAR DATT

JUDGEMENT

(1.) Bal Mukand is alleged to have purchased two shops and a ahata vide sale deed dated 29th Feb. 1884 (Ex. PW 3/3). He died in the year 1922 and the property owned by him is alleged to have been inherited by three of his sons, widow of a pre-deceased son and son of another pre-deceased son. On 29th April, 66, Suit No. 195 was filed by two grandsons from two branches for an injunction restraining the tenants of the ahata once owned by Bal Mukand from paying the whole of the rent of the descendants of the remaining two branches as one branch had become extinct and claimed that half of the rent was payable to the plaintiffs and the other half to the other two branches who were also impleaded as defendants. A decree for Rs. 580/- representing the past three years' share of rent was also claimed. The defendants contested the suit and it was pleaded that Thakar Dass alone was the exclusive owner of the ahata and prayed that the suit be dismissed. Both the courts below found that the ahata was joint of the four branches in which the plaintiffs had half share and the other half belonged to defendants Nos. 3 to 6 jointly and defendant No. 7 in equal shares. However, both the courts below held the suit to be time- barred as the same was not filed within six years of the denial of plaintiffs' title vide written statement of Thakar Dass dated 21st Oct. 1956 (Ex. R. 1) filed in the previous litigation in which the plaintiffs' right was denied to their knowledge. The residuary Art. 120 of the old Limitation Act Art. 113 of the Limitation Act. 1963 (hereinafter referred to as the Act) was applied to the facts of the present case. The plaintiffs have come up in R. S. A. No. 1357 of 1969.

(2.) The plaintiffs filed another civil suit No. 196 with regard to the two shops against tenants and impleaded the other co-sharers as defendants and claimed similar decree of injunction besides claiming a decree for Rs. 500/- towards the arrears of rent regarding their share for the past three years. That suit was also contested by the defendants. Both the courts below found that the shops also belonged to Bal Mukand and the defendants of the four branches were cosharers. The suit was found to be within limitation and the claim of arrears in respect of Rs. 500/- was also found to have been proved with the result that the suit was decreed as prayed for. Some of the defendants have filed R. S. A. No. 1305 of 1969 in this Court. Counsel for the parties are agreed that common questions are involved in both the appeals and hence the two are being disposed of together. R. S. A. No. 1357 of 1969.

(3.) The learned counsel appearing for the plaintiff appellant has urged that the court below was in error in applying residuary Art. 113 whereas in fact Art. 110 or Art. 65 of the Act would apply to the present case. On the other hand, learned counsel for the defendants has urged that the court below was right in applying Art. 113 of the Act.