DEODHARI PANDEY Vs. DAYANAND PANDEY

JUDGEMENT

(1.) The main points which are urged in this appeal are, first, that the learned Judge is in error in holding that the sale-deed executed by Jugal Kishore conveyed no title to the plaintiff notwithstanding the registration and that it was open to the defendants Nos. 1 and 2 to ask the Court to find that the sale was also in favour of Ambica and that his name was omitted by fraud without bringing a separate suit for declaration of their title, and that it was necessary for them, if they so desired to question the validity of the kobala, to sue to have it set aside or modified; but as they have not done so and as the period of limitation has expired the defence cannot now be taken. In our opinion there is no force in this argument, for the Limitation Act is an Act which is applicable to a suit brought by the plaintiff; a defendant will not be precluded from setting up a right -by way of defence even if he could not have done so as plaintiff by way of substantive claim. In the present case, however, it is decided as a question of fact that the respondents were in possession. The appellants seek to disturb that possession and produce in support of their case a document which the respondents impugn. It is open, in my opinion, to them to do so. This objection, therefore, fails.

(2.) The other question relates to certain observations in the lower Appellate Court s judgment which, it is said, show that the learned Judge relied upon evidence which ought not to have been admitted in this case. I am not satisfied that the instances to which our attention has been drawn are instances of reliance upon inadmissible evidence. If they were, I agree in the learned Judge s judgment under appeal that they did not affect the question raised before us and that the material findings are based upon evidence which is admissible.

(3.) It is lastly contended that though it is said that the claim which is made for khas possession cannot be supported, still there should be a declaration of title. This is not a claim which is made in the plaint and moreover the answer, is that the title which is sought to be declared is not made out.