SHEORAJ NANDAN SINGH Vs. RAMJANKI

JUDGEMENT

(1.) In support of this appeal learned Counsel submitted that as regards the lands comprised in Schedule 1 (a) the lower appellate court was wrong in holding that the suit was barred under the provisions of Order 21, Rule 63, of the Code of Civil Procedure, read with Article 11 of the Limitation Act. The submission of learned Counsel was that no final decision was given on the merit of the application under Order 21, Rule 58, Code of Civil Procedure, but the application was rejected under the proviso to Order 21, Rule 58, which states that

(2.) Two other points were taken by learned Counsel on behalf of the appellant. It was contended that the application under Order 21, Rule 58, was made not on behalf of the party, defendant No. 9, but on behalf of defendants Nos. 6 to 8. It was also argued that the lower appellate court was wrong in holding that Harihar Prasad Singh, defendant No. 10, was a cosharer tenant and that he ought to have been impleaded in the rent suit, and in his absence the decree in effect will be a money decree and not a rent decree. We do not think that there is any merit in these objections raised on behalf of the appellant, because they are essentially questions of fact upon which the findings of the lower courts are binding in second appeal upon the High Court. In our opinion, there is no substance in these arguments advanced on behalf of the appellant.

(3.) With regard to Schedule 2 properties, the argument advanced on behalf of the appellant is that there is no finding by the lower courts that plaintiff No. 2 or his predecessor-in-title was in possession within twelve years prior to the institution of the suit. We do not think that this argument is correct because there is a finding of both the lower courts that plaintiff No. 2 was in possession of the properties described in Schedule 2 of the plaint. This finding of fact is partly based upon the decree of the Partition Suit No. 190 of 1943 regarding Schedule II properties in which defendant No. 9 was also a party. In our opinion, the question raised by the appellant is also a question of fact and the finding recorded by the lower appellate court is supported by proper evidence and it is, therefore, not open to challenge it in second appeal. For these reasons we hold that there is no merit in this appeal which is accordingly dismissed with costs.