DWARIKA SAHU Vs. ANANDI

JUDGEMENT

(1.) This appeal by the plaintiff is directed against a decision of the Additional Sub-ordinate Judge of Hazaribagh, reversing a decision of the Munsif of Hazaribagh. It arises out of a suit for the declaration of title to and recovery of possession of a house, being holding No. 933 in the Municipality of Hazaribagh.

(2.) This house formerly belonged to one Hazari Barai. Hazari had two sons Shib Charan and Chedi. Shib Charan died leaving two sons Shyamlal and Lalji. Chedi died leaving a widow Tejni and a daughter Anandi. Mt. Tejni is now dead. The plaintiff claims the house by purchasing in execution of a decree obtained by him against Shyamlal and Lalji on the foot of a handnote, According to him, Chedi died joint with his brother Shib Charan, and the house finally came by survivorship to Shyamlal and Lalji. His purchase was in the year 1940. In the course of the execution of the money decree, a claim under Order 21, Rule 58, was filed by Mt. Rajeshwari (defendant 4), which was decided in her favour. The plaintiff, however, succeeded on 22nd December 1941 in getting a decision in his favour in Title suit No. 271 of 1940 brought by him under Order 21, Rule 63, Civil P. C. Having succeeded in this suit, he asked the Court for delivery of possession in pursuance of his purchase in the money execution. Delivery of possession was resisted by Anandi (defendant 1), claiming a half share in the house on the contention that her father Chedi separated from his brother Shib Charan and that she inherited his half share of the house. The plaintiff, thereupon, instituted a case under Order 21, Rule 97 of the Code. On the very first date fixed in the case, however, there was no appearance on his behalf and the case was dismissed on 10th April 1943. The present suit was filed by him on 2nd May 1944, more than a year after the dismissal of his objection under Order 21, Rule 97.

(3.) Mt. Anandi contested the suit setting up the same story as before. Both the Courts below have agreed in rejecting her story. They have held that Chedi died joint with his brother and that the house passed by survivorship to Shyamlal and Lalji, with the consequent result that Mt. Anandi has no legal interest in it. The suit was decreed by the Munsif. His decree has been reversed and the suit dismissed by the Subordinate Judge on the ground that the limitation for the filing of the suit is governed by Article 11-A of Schedule 1, Limitation Act of 1908. Hence, the present appeal. In the opinion of the Munsif, Article 11-A bad no application to this suit, because the final order passed in the proceeding under Order 21, Rule 97, was without any investigation having been made by the Court. The Subordinate Judge on the contrary, held that the decision of a Division Bench of this Court in Raziuddin Hussain v. Bindesri Prasad Singh, 5 Pat. L. J. 652 ; (A. I. R. (7) 1920 Pat, 123), is an authority that an investigation is not necessary for the applicability of this Article.