MUKHRAM RAI Vs. CHANDRADEEP RAI

JUDGEMENT

(1.) This appeal arises out of a partition suit in which the District Judge of Shahabad has upheld the decision of the trial Court and dismissed the suit with regard to the bulk of the properties sought to be partitioned and decreed the suit with regard to those properties which were admittedly held in common. The parties are admittedly descendants of a common ancestor Gandhu Rai who had two sons Sampat Rai and Bisesar Rai. The plaintiffs are the descendants of Bisesar Rai and the defendants are the descendants of Sampat Rai. The plaintiffs case was that they and the defendants were co-parceners of a joint family governed by the Mitakshara school and that the properties sought to be partitioned were all joint family properties. The defendants on the other hand contended that there had been disruption of the family long before the institution of the suit and that the properties had been partitioned some 90 years before the suit.

(2.) Both the Courts below have held that the parties separated in status many years before the suit and the lower Appellate Court has also disbelieved the defence case that there was a partition about 90 years ago. The decision of the first Court is that the defendants have succeeded in proving that the plaintiff had been separate from them in family status, is ownership of properties and in possession except in respect of the lands admitted in the written statement to be held by both parties in common tenancy. The learned District Judge affirms these findings but as he has also definitely found that there was no formal partition between the parties, the decree passed by him is assailed on the ground that even co-sharers, though separate in status, may claim partition of the family properties which have not been partitioned by metes and bounds. The facts of the present case, however seem to me to be somewhat similar to the facts of the case of Yallappa Ramappa V/s. Tipanna 1929 PC 8, which was decided by the Privy Council in 1928. In the present case the parties have been in possession of and have been exercising rights of ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have been already divided and the rights of the parties defined in regard to them in such a manner as to preclude their being re-partitioned. But in any event the finding of the learned District Judge that the defendants have acquired title to the lands of which they have been in exclusive possession for more than 12 years seems to me to be sufficient to dispose of his appeal.

(3.) The learned District Judge has referred to certain disputes between the parties in the course of the last survey proceedings which took place sometime in 1908 and he has pointed out that Hari Pragash, one of the plaintiffs never asserted in the course of these proceedings that the family was joint but had in fact admitted that there had been a separation in status more than 8 or 10 years before the survey proceedings. It is also pointed out by him that the defendants in the course of the survey proceedings had asserted in clear term that they were entitled to remain in possession of the lands, which were, ultimately recorded in their name, as a matter of right. As I have already stated the purvey proceedings took place more than 12 years before the institution of the present suit and thus, as the learned District Judge has pointed out, the defendants have not only been in possession of the disputed lands for more than 12 years but have been asserting at least since the survey proceedings that these lands belong exclusively to them. To such a case as was indicated in Yallappa Ramappa V/s. Tipanna 1929 PC 8, Art. 127, Lim. Act would seem to apply. That article provides that a suit by a person excluded from joint family property to enforce a right to share therein must be instituted with in 12 years of the date when the exclusion became known to the plaintiff. I am, however, conscious of the fact that a question may arise whether Art. 127, will apply where there has already been a division of status but nodivision of immoveable properties by metes and bounds. But -in any case if Article 127, does not apply, Art. 144 will apply and the decision of the learned District Judge is, therefore, substantially correct; In these circumstances I would dismiss this appeal with costs.