MAHARAJ SAI Vs. KEDAR NATH

JUDGEMENT

(1.) 1. The appellant brought a suit in the Court of the Additional District Judge, Bilaspur, for possession of a house and some occupancy and absolute occupancy land in Mouna Siledehi in the Janjgir Tahsil of the Bilaspur District, for certain moveable property and for a declaration that he had a two-thirds share in the property that had been kept joint, and that a partition of such property be ordered. The Judge dismissed the claim for possession both of the moveable and immovable property and granted a declaration only with regard to the joint tenancy land and the joint money-lending. The plaintiff has appealed to this Court on the ground that the claim for possession of the tenancy land should have been decreed. It may be noted that no claim has been made in the appeal with regard to the moveable property or the money lending business, and the only question at issue is -whether the trial Court was right in dismissing the claim for possession of the tenancy land on the ground of limitation. The respondents have filed cross-objections with regard to the finding that one field, No. 995, was kept joint and with regard to the finding that there was no reunion, as pleaded by them, between Ghasiram the father of respondent 1, and Jailal, the deceased owner of the property in suit. The appeal and cross-objections' were heard together, and this judgment will govern both.

(2.) IT is admitted that the plaintiff-appellant Maharaj Sai had an elder brother Ghasiram and a younger brother Jailal. The defendants-respondents are the son and grandson respectively of Ghasiram, who is dead, and Jailal is also dead. The three brothers Ghasiram, Maharaj Sai and Jailal were joint, but a partition was effected in 1925, certain property being kept joint at the partition and the rest being divided. Ghasiram died shortly afterwards in 1926, whilst Jailal died in June 1928. The plaintiff's contention was that Jailal having left no son or grandson he was the heir of his property as his brother, and owing to the partition the defendants had no right to the property. The defendants, on the other hand, pleaded that shortly after the partition there was a reunion between Ghasiram and Jailal, and that therefore they were entitled to succeed to Jailal's property by survivorship. It is admitted that the dispute about the property was referred to arbitration after Jailal's death, and the arbitrators made an award. Maharaj Sai however was not satisfied with the award and he brought a suit, Civil Suit No. 33 of 1929, in the Court of the Sub-Judge, First Class, Bilaspur, and obtained a decree on 22nd April 1930, declaring that the award of the arbitrators dated 26th September 1928 was void and did not bind him or his interest in the property. After the decree in that suit he filed the suit, out of which this appeal arises, on 28th October 1930. There were other issues raised about a will executed by Jailal in favour of his grand-daughter Mt. Lalatin and defendant-respondent 1, and the findings of the trial Court about the will have not been challenged in appeal and must stand.

(3.) THE only ground on which the finding is challenged is that the plaintiff should have been given the benefit of Section 14, Lira. Act, and that in computing the period of limitation the plaintiff should have been allowed to exclude the time during which he had been prosecuting the proceedings before the arbitrators. It may be noted that no such plea with regard to Section 14 was made in the lower Court, nor was it considered by that Court. The lower Court has given this finding on limitation solely on the ground that the plaintiff was entitled to possession on the death of Jailal in June 1928, and that the suit having been filed in October 1930, more than two years after the death of Jailal, his suit was barred under Article 1, Schedule 2, C. P. Tenancy Act, which lays down that the period of limitation for possession of a holding is two years, and that the time begins to run from the date of dispossession or exclusion.