MT. MOHANKUAR Vs. BHAGATRAM

JUDGEMENT

(1.) 1. This appeal arises out of a suit for a declaration that the plaintiffs are entitled to the entire village of Saradih together with the bhogra land therein. The suit arose out of an order passed in the revenue Court on an application by Bhagatram, Bisnath and Sundarmani who are the representatives of another branch of the family than that represented by the plaintiffs for partition of the village under Section 169, Sub-section (1) (b), C. P. Land Revenue Act of 1917, to the effect that the plaintiff's who had opposed the application for partition should make good their claim to their title to the village within six months. The plaintiffs accordingly filed the suit out of which the appeal arises. That suit has been dismissed on the grounds that the plaintiffs did not make the necessary application within six months as ordered by the Revenue Court and also on the merits of the case that they have failed to establish their title to the whole 16 annas share.

(2.) THE common ancestor of the plaintiffs and defendants 1 to 6 was Lachhman. He had four sons, Sadasheo, Narayan, Ganeshram and Anantram. The line of Ganeshram is extinct and his rights are claimed by the branch of Narayan, and for the purposes of this appeal that is not disputed. The plaintiffs belong to Narayan's branch being the widows of Narayan's two sons and the third a daughter of Narayan. Defendants 1 to 3 are the descendants of Sadasheo and defendants 4 to 6 the descendants of Anantram. Defendants 7 to 9 are transferees of a share from the sons of Anantram and defendants 10 to 18 are transferees from the plaintiffs. The plaintiffs' contention is that at a partition between the immediate descendants of Lachhman many years ago there were four villages available for partition as being joint family property: Saradih, Sakreli, Manjarkut and Chharra; that in this partition Sakreli and Manjarkut went to the branch of Sadasheo, Saradih to Narayan and Ganeshram and Chharra to Anantaram. Defendants 10 to 18 as transferees from the plaintiff's naturally support them. Defendants 1 to 6 supported by transferee-defendants 7 to 9 on the other hand contend that at the time of the partition there was only one village Saradih which was joint family property and that it was not divided by metes and bounds but that the four brothers became tenants in common in equal shares thereof and that the acquisition of Sakreli and Manjarkut by Sadasheo was subsequent to the partition as was the acquisition of Chharra by Anantram.

(3.) THE first point that arises is the question of limitation. The order of the Subdivisional Officer under Section 169 (1) (b), passed in virtue of the powers of the Collector conferred on him is dated 3rd June 1926. The plaint was filed in a Court which had no jurisdiction to accept it on 7th December 1926, one day within the period of limitation prescribed in the Land Revenue Act. After a delay of nearly a year the plaint was returned for presentation to the proper Court on 4th November 1927 and was represented in the proper Court, the Court which tried the suit, on 19th November 1927. Even if the time spent in the Court which had no jurisdiction be excluded, the delay in taking the suit to the proper Court (and both Courts are situated in the same place) brings the time taken in filing the suit beyond the period of six months.