MUSAMMAT DUEGA KUNWAR Vs. MUSAMMAT CHUNNA KUNWAR

JUDGEMENT

(1.) The plaintiff in the Court of first instance is the appellant here. She brought this suit for recovery of certain property on the following allegations. Raj Bahadur and Kunwar Bahadur were two first paternal cousins. Raj Bahadur was the sole owner of the property in dispute. In the life time of Raj Bahadur there was a litigation between him and Kunwar Bahadur in which Kunwar Bahadur lost. On the death of Raj Bahadur, however, Kunwar Bahadur again laid claim to his property. The dispute was referred to three arbitrators on the 15 of August 1895 and they made an award the next day. (This is a registered document and a copy of which is on the record). By this document Kunwar Bahadur was to remain in possession of the property as a trustee for the plaintiff and was to pay her a certain amount of maintenance. On the death of Kunwar Bahadur the plaintiff became entitled to the possession of the property. But in his life-time, Kunwar Bahadur made a transfer and his transferees made further transfers. The widow of Kunwar Bahadur and the present holders of the property are the defendants in the suit.

(2.) Both the Courts below dismissed the suit on the ground of limitation. The learned Munsif decided certain other points raised by the defendants but the learned District/Judge did not enter into those matters. They lower Appellate Court held that either Kunwar Bahadur was a full owner or was a trustee as is stated by the plaintiff herself. In either view, the alienation having taken place so far back as in 1897, the suit could not be treated as being within time.

(3.) In this Court it has been urged that, under the terms of the award, the right to recover actual possession adored to Musammat Durga Kunwar, the appellant, only after the death of Kunwar Bahadur and that the suit was not barred by time. It is common ground that Kunwar Bahadur died on the 31 of May 1916.