DURGADAS Vs. AGARCHAND

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of a suit for partition.

(2.) ONE Jagannath Purohit had four sons viz. Hardev, Shivedhan Das, Narsinghdas and Ganesh Das. Hardev and Narsinghdas died issueless. Shivedhan Das had one son Moolchand; defendant No. 2 Ganesh Das had three sons, Durgadas and Sangi Das, who are defendant-appellants in this case and one Baijnath, who went away in adoption outside the family. Ganesh Das and Moolchand mortgaged the house in question which is situated in Bikaner for Rs. 1300/- in favour of Sheonarain, father of respondent No. 1 Agarchand for Rs. 1300/- by a registered mortgage dated 8-8-3939. This house originally belonged to Jagannath and consequently Moolchand had half share in it and the other half share belonged to Durga Das and Sangi Das. Moolchand sold away his 1/2 share for Rs. 4000/- to the plaintiff Agarchand by registered sale-deed dated 20-9-1950 marked Ex. 1 on the record. On 19-9-1962 Agarchand filed the present suit in the Court of Civil Judge, Bikaner alleging that he had purchased 1/2 share in the house from Moolchand and had also got possession of a few apartments from Moolchand at the time of sale, but Durgadas and Sangi Das had dispossessed him of those apartments on 5-9-1962. He, therefore, prayed that a decree for partition of 1/2 share in the house in dispute may be granted in his favour and possession of the same may be handed over to him after partition by metes and bounds. Both Durgadas and Sangi Das filed joint written-statement and pleaded that no partition had taken place between them and Moolchand and that the plaintiff had never got possession of any specific portion of the disputed property. It was pleaded that no cause of action had accrued to the plaintiff on 5-9-1962, and therefore, the suit is barred by time. Moolchand, however, did not file any written statement and was proceeded against ex parte.

(3.) THE only other article that can be pressed into service is Article 144. In Manikayalal Rao vs. Narasimhaswami (4) supra according to the majority view the application of this Article to a suit brought by the purchaser of a coparcener's undivided interest in a joint family property seems to present great difficulties. This article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of 12 years commencing from the date when possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendants might be in adverse possession of it as against the plaintiff. As observed by their Lordships the right of such purchaser to possession would date from the period when a specific allotment was made in his favour. In the present case admittedly no partition had taken place before the filing of the suit and no allotment had been made in favour of the plaintiff or his predecessor-in-title Mool Chand. It would, therefore, appear that the plaintiff was not entitled to possession till a partition had been made. In the words of their Lordships "that being so it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in Madras Full Bench case; Vyapuri vs. Sonamma (8 ). " Sarkar J. , speaking for himself and Raghubar Dayal J. , felt considerable difficulty in applying Art. 144 to such a case and proceeded on the assumption without deciding it, that even if Art. 144 is applicable the suit was not barred. Ramaswami J. , however, was pleased to observe that such a suit falls within the purview of Art. 144 of the Limitation Act and the fact that the alienee has purchased an undivided interest of joint family property is not inconsistent with the conception of adverse possession of that interest. In this view of the matter it was held by his Lordship that adverse possession begins to run from the date of the purchase of the undivided share. Thus in the present case also, even proceeding on the assumption that Art. 144 is applicable it seems to me that the suit is not barred because the date of the sale in the plaintiff's favour is 29-9-1950 and the suit has been brought within 12 years i. e. on 19 9-1962. Looked at from any angle the suit is not barred by limitation.