MT SHEO KALI KUAR Vs. MTJALEBA KUAR

JUDGEMENT

(1.) This is a plaintiff's appeal which arises out of a suit for possession over some zamindari property which admittedly belonged to one Alrakh Rai, the father of the plaintiff. It appears that Alrakh Rai had a brother known as Sukhbas Rai who died in the lifetime of Alrakh Rai. Mt. Jaleba Kuar, defendant 1, is the wife of Sukhbas Rai. After the death of Sukhbas Rai, his property came into possession of Mt. Jaleba Kuar, It is common ground in the present litigation that the two brothers were separate. After the death of Alrakh Rai, some time in the year 1926, it appears that during the mutation proceedings in the revenue Court a compromise was effected between Mt. Sheo Kali, the present plaintiff, represented by her husband Kedar Rai who figures as defendant 2, and Mt. Jaleba Kuar, the contesting defendant. Thereafter on 23 May 1938 the present suit was instituted by the plaintiff obviously for avoiding the compromise and obtaining possession over the portion of the property left by Alrakh Rai over which Mt. Jalfiba Kuar was in possession in pursuance of the compromise. The suit was contested on various grounds including one with regard to limitation.

(2.) This case has had a prolonged and chequered history; It appears to have been first of all decided and decreed ex parte in October 1938. Subsequently the ex parte decree was set aside and the case was decided on merits. With regard to the other issues raised in the case, findings were recorded finally and I am no longer concerned with those issues. It appears that the case was remanded on some occasions by the lower appellate Court to the Court "of first instance. On the last occasion, it was on 12 May 1941, that the suit was remanded to the Court of first instance specifically with the direction that the question of limitation should be properly decided by the Court of first instance. Parties were given "opportunity to adduce fresh evidence, if they liked, on that question. The learned Munsif, by his judgment dated 31 July 1944, decided the question of limitation against the plaintiff. He held that Art. 142, Limitation Act, applied to the case. Accepting the evidence of one Ram Deo Rai, a witness on behalf of the plaintiff, the learned Munsif held that the defendant must be deemed to have been in possession of one-half of the property left by Alrakh Rai the property in dispute since 17th January 1926. The learned Munsif believed the evidence of Ram Deo Rai and held that Alrakh Rai had died on that date. In view of these findings the suit was dismissed as time barred.

(3.) On appeal the learned Civil Judge affirmed the findings of the Court of first instance and dismissed the appeal. Learned Counsel for the plaintiff-appellant has strongly contended that in view of the pleadings of the parties and the findings recorded by the lower appellate Court, there can be no doubt that the Court below was in error in holding that the claim was barred by limitation under Art. 142, Limitation Act.