HARAKH SONAR Vs. GOPI KISHUN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession. This suit could have been dismissed on the ground much simpler than the one on which the lower appellate Court has dismissed it, though even that ground is sound.

(2.) The defendant obtained a simple money decree against the plaintiff's father and attached his one-fourth share in a joint family property which belonged to the father and his brothers. Under the Privy Council ruling of Suraj Bunsi Koer V/s. Sheo Persad Singh (1880) 5 Cal. 148, the father's interest could be attached and seized in his lifetime. It was put up for sale and purchased at auction by the decree- holder himself. The decree-holder, however, did not apply for delivery of possession and the father died. Subsequently the plaintiff's uncles brought a suit for partition against the decree-holder-purchaser impleading the present plaintiff as a defendant. In this partition suit four lots were prepared and one lot consisting of a one-fourth share was allotted to the defendant who had purchased the share of the plaintiff's father. This decree became final. After this decree defendant applied to the Execution Court and got a formal delivery of possession on the 24 of October, 1922. Subsequent to the delivery of possession the present plaintiff filed an objection to the Court saying that the application for delivery of possession was barred by time inasmuch as it had been filed more than three years after the sale. The Court however, dismissed the objection and upheld the delivery of possession against the plaintiff. The plaintiff has now brought a separate suit for recovery of possession and the main ground on which the suit is based is that the application for delivery of possession was barred by time and, therefore, he is not bound by the proceedings relating to the delivery of possession. His contention, in my opinion, cannot be accepted.

(3.) The first difficulty in the way of the plaintiff is that under a partition decree to which he himself was a party the defendant has been given one-fourth share in a separate lot. In some way or other, assuming that it was an irregular way, the defendant has succeeded in obtaining possession of this one-fourth share allotted to him. In face of the partition decree the plaintiff who has no title has no right to recover it back from him. The suit, therefore, ought to be dismissed on this simple ground.