PUTHIA VALAPPIL AYISSA ALIAS HAYUMMA Vs. VLAKSHMANA PRABHU

JUDGEMENT

(1.) WE are unable to agree with the lower Court in holding that the question whether the plaintiff s suit is barred by limitation is res judicata by the decision in the previous suit between the parties. Exhibit C is the judgment of the District Court and Exhibit E that of the High Court in that suit. The High Court could be taken to have decided only that the 1st defendant had not been excluded from possession within 12 years prior to that suit. Exhibits H and O in that suit, referred to in Exhibit C, only show that the 1st defendant s title to a two- fifths share was recognised in June and July 1895. The present suit was instituted more than 12 years after the dates of those documents. This Court has more than once held that a decree in favour of a party with regard to property does not by itself stop the running of limitation when the property continues to be in the possession of the defendant. It is, therefore, possible, that, though the former suit was not barred, when it was instituted, the present suit may be barred by limitation. WE must reverse the decree and remand the suit for fresh trial according to law. The lower Court must take evidence on the question of limitation and decide it afresh. Costs will abide the result.

(2.) MR. Rosario does not contend that apart from limitation the 1st defendant is not entitled to the two-fifths share or that the plaintiff is not entitled to recover that two-fifths share.