BAIJNATH SAHU Vs. JAIMANGAL PRASAD SINGH

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted on the following allegations: Nannu Sahu had two sons. Baijnath Sahu by his first wife and Bundi Sahu by his second. After Nannu Sahu's death Baijnath Sahu and Bundi Sahu entered jointly into possession of his property, but shortly after his death and before 1927 the two brothers amicably separated without partition of property, so that they ceased to be members of a joint family, and they held the inheritance of Nannu Sahu as tenants-in-common. On 27 July 1927, Bundi Sahu sold his hall share in a little over half an acre of land and three-houses to the plaintiffs. The plaintiffs instituted this suit for partition. The suit was contested by Baijnath Sahu who denied that Bundi Sahu was his brother and denied that Bundi Sahu had any right in the property which he had purported to convey by the sale. He further objected that Bundi had not been in possession of the property within 12 years of the suit, so that any claim of Bundi Sahu or the plaintiffs would be barred by limitation.

(2.) The Subordinate Judge found that Baijnath Sahu and Bundi Sahu were sons of Nannu Sahu, but that they had separated and that it had not been proved that this separation had taken place within 12 years of the suit. He found that the plaintiffs had proved the execution of the sale-deed and passing of consideration, but as no possession on the part of their vendor had been proved within 12 years of the date of the suit, he held that the suit was barred by limitation and that it must be dismissed. On appeal the District Judge confirmed the finding of the Subordinate Judge that Bundi Sahu was the son of Nannu Sahu, but on the question of limitation he-held that as no definite act of ouster had; been proved, the possession of one tenant-in-common could not be treated as adverse to the other, and that therefore the suit could not be properly regarded as barred by limitation. He set aside the decree of the Subordinate Judge and decreed the suit.

(3.) In discussing the question of the relationship of Baijnath Sahu and Bundi Sahu each of the Courts below gave consideration to the judgment in a suit of 1927. One Ramlal Gop had given land in usufructuary mortgage to Nannu Sahu. Dipa Gop, as the heir of Ramlal Gop, sued Baijnath and Bundi as sons of Nannu Sahu for redemption of the mortgage. Baijnath objected that there had been misjoinder of parties because Bundi Sahu was not his brother. An issue was framed on this question, on which the decision of the Court was that Baijnath and Bundi were both sons of Nannu Sahu; but the suit was dismissed on the ground that the plaintiff, Dipa Gop was not the heir of Ramlal Gop, and so he was not entitled to sue for redemption. The Subordinate Judge treated this judgment as evidence of the fact that the claim was asserted at that time by Bundi Sahu. He also referred to admissions made by witnesses which were mentioned in the course of that judgment and of another judgment as evidence of the fact of relationship. The District Judge treated the judgment as binding on Baijnath Sahu: but he criticised the Subordinate Judge for his reference to the statement of the witness taken from that judgment. The District Judge remarked that it was open to the Subordinate Judge to record that in a previous litigation between defendant 1 and defendant 3 it was held that defendant 3 was a son of Nannu.