MUSAMMAT SUNDAR Vs. MUSAMMAT SARASWATI

JUDGEMENT

(1.) One Mool Chand was a co-sharer in the village of Sunderpur in the District of Bareilly. He died leaving him surviving five sons, one of whom was called Kundan. Kundan s share was sold in 1897 in execution of a decree against him and was purchased by one Basant Rai. The latter obtained symbolical possession through Court on 5th February 1898.

(2.) On the 31st of December 1898, on the verification of the khewat during the recent Settlement, Mool Chand s share was sub-divided into 200 shares and four shares only were allotted to Kundan. On the 25th of January 1910, Basant Rai executed a deed of sale in favour of Musammat Saraswati Kuarin respect of the share he had purchased at auction sale in 1897.

(3.) On the 28th of June 1910, Musammat Saraswati Kuar instituted the suit, out of which this appeal has arisen, for the recovery of 89 1/3 shares on the allegation that Kundan was entitled to 93 1/3 shares out of 200 shares of his father by right of inheritance and purchase at auction sale in execution of a decree against his father prior to 1897. It was further stated in the plaint that Basant Rai had purchased at auction sale of 1897 in execution of the decree against Kundan the entire share of the latter--that is 93 1/3 out of 200 shares, and had obtained and remained in possession and enjoyed profits of the share so purchased up to within a few years of the institution of the suit of Musammat Saraswati in spite of the order in the Settlement, awarding four shares only out of 200 to Kundan. The cause of action was, however, alleged to have accrued on 31st December 1898, the date of the erroneous order in the Settlement describing the share of Kundan as 4 out of 200. The suit was brought after the death of Kundan in the Court of the Munsif of Havali Bareilly against the mistress of Kundan, a brother of the latter, the widow of another brother, two transferees and Basant Rai, the auction- purchaser. The claim was resisted by all the defendants except Basant Rai. It was denied that Kundan had a larger share than what was allotted to him on the verification of the khewat or that he was a purchaser of any portion of his father s property in execution of a decree against the latter. It was also denied that Basant Rai had ever obtained actual possession of Kundan s share or had purchased and enjoyed the profits of anything more than what was allotted to Kundan on 31st December 1898, that is, 4 out of 200. The plea of limitation was also urged in bar of the claim. The learned Munsif found that Kundan was entitled to 66 2/3 shares out of 200 shares and that Basant Rai had purchased 66 2/3 shares at the auction sale in 1897. But as Basant Rai had obtained symbolical possession only and had not enjoyed profits of 66 2/3 shares, the claim was barred as to 62 2/3 shares having been brought more than 12 years after the delivery of symbolical possession but Saraswati preferred an appeal to the District Judge which was disposed of by the Additional Judge. The latter held that as thecontesting defendants had set up adverse possession, it was for them to prove it and as they had failed to establish, their plea of adverse possession, the claim was within time. The learned Additional Judge accepted the appeal and reversing the decree of the first Court decreed the claim for 62 2/3 shares.