RAMJEE OJHA Vs. CHANDRADIP KAHAR

JUDGEMENT

(1.) THE question involved in this appeal is whether the suit brought by the plaintiffs for partition of 11/12ths share of the properties is barred by Article 11 of the Limitation Act, which runs as follows:

(2.) WE do not accept this argument as correct. In our opinion, Article 11, has no application to this case because the plaintiffs have brought the suit for a declaration of their title and partition of 11/12ths share of the disputed properties. This quantum of share was not challenged in the proceedings under Order 21, Rule 58, Code of Civil Procedure. It is true that in the application under Order 21, Rule 58, Code of Civil Procedure, the plaintiffs had claimed that defendant No. 2, who was the predecessor-in-interest of defendant No. 1, had no interest whatever in the disputed properties and the plaintiffs themselves had 16 annas interest. This claim was negatived by the executing court and it was ordered that whatever interest defendant No. 2 had was the subject-matter of sale in the execution case. It has now been found in the present suit that the share of defendant No. 2 was l/12th and that share has been purchased by defendant No. 1. So far as the l/12th share of defendant No. 2 is concerned, therefore, Article 11 would have applied; but the present suit of the plaintiffs is not with regard to the l/12th share of defendant No. 2 but with regard to the ll/12ths share which the plaintiffs admittedly had in the disputed property and which they did not challenge in the execution case. It is obvious that it is not every order against the claimant which falls within the meaning of Order 21 Rule 63, .C. P. Code as has been pointed out by the Madras High Court in Kachinamthodi Parambil Saharabi v. Chekkutti, 44 Mad LJ 141 : (AIR 1923 Mad 295). It has been pointed out by the learned Judges in that case that every order which is not in favour of a claimant is not necessarily an order against him so as to attract the provisions of Order 21, Rule 63, Code of Civil Procedure, and the bar of Article 11 of the Limitation Act would not apply to every such case. In our opinion, the present suit is not barred by limitation under Article 11 of the Limitation Act, and the view taken by the lower appellate court is correct. This appeal must be dismissed with costs.