SHEIKH SHACHUNI Vs. SHIEKH BASIR AND NURJAN BEWA

JUDGEMENT

(1.) Two contentions have been raised in this case : the first is that with regard to the question of title, the defendants set up a new case on appeal to the lower Appellate Court.

(2.) We do not think, however, that any new case was set up. The plaintiffs case was that all the properties belonged to their maternal grandfather Lobai, and that they were entitled to two thirds of the same. The case for the defendants was that the entire properties belonged to their father Budhai. The Court of first instance found in favour of the plaintiffs with regard to all the properties and gave them a decree for two thirds share as claimed. The Court of Appeal below disagreed with that finding with regard to properties other than the homestead, and with regard to the homestead, that Court found that the property originally belonged to Lobai Sircar. It cannot be said, therefore, that the lower Appellate Court decided the question of title upon a new case.

(3.) The second contention is that the Court of Appeal below is wrong in the view it has taken on the question of adverse possession as between co sharers. The learned Subordinate Judge was of opinion that because the defendants were in possession of all the lands in dispute, therefore, the plaintiffs claim was barred by limitation.