SITA RAM DUBE Vs. RAM SUNDER PRASAD

JUDGEMENT

(1.) The question for decision in this appeal is one of limitation. The trial Court and the first appellate Court dismissed the plaintiff's suit on the ground that it was barred by time. The learned Judge of this Court, whose judgment is before us in appeal, was of the contrary opinion: he has held that the suit was within time and has given the plaintiff a decree for possession.

(2.) The facts to be considered are these: The predecessor-in-title of the plaintiff obtained a simple money decree against the grandfather of defendant 1, a minor named Babban Dube. In execution of this decree he brought to sale and purchased an undivided 1/3 share of a house which was owned jointly by his judgment- debtor and certain others who are now represented by defendants 2 to 8. The purchase was made in the year 1900 and the purchaser, on 16 March 1903, was given formal possession over his 1/3 joint share in the manner provided by Order 21, Rule 96, Civil P.C. The judgment-debtor, notwithstanding this, continued in actual physical possession of the house along with his former co-owners, who were his relations.

(3.) In 1916, the purchaser brought a suit for partition against the other co- owners and obtained a decree for the separation of his 1/3 share, and in 1917 he applied to be placed in actual possession of his separated share. This application was opposed on behalf of the present defendant 1 on the ground that he was in actual possession and was not bound by the partition decree to which he was not a party. The objection of defendant 1 was sustained with the result that the plaintiff brought the present suit on 13 April 1921, claiming actual physical possession of the one-third share. The suit was framed as a suit for recovery of possession after dispossession by defendant 1. The plaintiff, claiming to have been in possession since the time of his purchase, pleaded that he was dispossessed in September 1917, when defendant 1 "interfered with has possession", and again on 29 June 1918, when his application for possession under the partition decree was shelved by the executing Court.