DUVVADA HARI KRISTNA CHOWDHARY; DAVVADA PARASU RAMAYYA CHOWDARY ALIAS NARAYANA CHOWDARY Vs. SRIPADA VENKATA LAKSHMI NARAYANA PANTULU

JUDGEMENT

(1.) The father of the plaintiffs obtained a decree against the 5 defendant and in execution thereof brought to sale and purchased the 5 defendant's one-fifth share in the two suit villages. The plaintiffs in the suit, out of which these appeals arise, sued for partition and for possession (sic) 5 defendant's one-fifth share in the (sic) villages.

(2.) Balakrishnama, adoptive father of the 2nd defendant, and defendants Nos. 1, 3 and 5 were members of an undivided family. In 1871 they effected a partition. The bulk of the family property was divided by metes and bounds, but the suit villages and some other immovable property were kept undivided for convenience of enjoyment and were held by the divided members as tenants in common, though the actual managementwas vested in Balakrishnama, who was to pay to each of the tenants in common his share of the income. In January 1893, Balakrishnama died and the management was thereafter with the 1st defendant.

(3.) Two of the issues framed in the suit were: whether the suit was barred by limitation and whether the suit was bad as being a suit for partial partition. The Court found both these issues in the negative and gave a decree for partition. The arguments on behalf of the appellants have been confined to an attempt to show that the findings upon the above issues are wrong. We shall first deal with Appeal No. 184 which is by the 1 defendant. This defendant in his written statement admitted that the 5 defendant used to receive payments towards his share of the income of the suit lands as long as Balakrishnama was alive. He contended, however, that after Balakrishnama's death in 1893, the 5 defendant had no enjoyment and that, therefore, the suit brought in 1906, was time-barred. The article of Schedule II of the Limitation Act, applicable to a case like the present, is Art. 144 and to succeed, it was incumbent upon the 1 defendant to prove that the 5 defendant was, in denial of his title, excluded from the enjoyment of his share of the suit lands. Jogendra Nath Rai V/s. Baldeo Das Marwari 35 C. 961 : 12 C.W.N. 127 : 6 C.L.J. 735, Sellam V/s. Chinnammal 24 M. 441, Ittappan V/s. Manavikrama 21 M. 153.