KISHUN PRASAD Vs. MTSHUBRATAN

JUDGEMENT

(1.) This is a defendant's appeal against a decree of the lower Appellate Court reversing a decree of the Court of first instance dismissing the plaintiff's claim. The plaintiff brought the suit out of which this appeal arises for partition of a house alleging that she was the owner of a half share therein. The learned Munsif dismissed the claim but the learned Civil Judge reversed the decision of the Court of first instance and decreed the-claim for partition to the extent of a 2/5 share. The facts as found establish that this house was originally owned by one Maula Bakhsh who left two sons-Mahibullah and Abdul Latif. By a sale deed dated 8th July 1931, Abdul Latif transferred his share in the property which he alleged was one-half to the plaintiff. The defence was that Abdul Latif was not the son of Maula Bakhsh and that consequently the plaintiff had no interest whatsoever in the disputed house. It was further pleaded that if Abdul Latif had a share in the disputed house then he had permitted dealings with this house and consequently the plaintiff's claim was barred by Section 41, T.P. Act. Neither of these defences found favour with the lower Appellate Court which eventually held that plaintiff was entitled to a 2/5 share and granted partition upon that basis.

(2.) In second appeal before me Mr. Panna Lal has argued that the plaintiff's claim was clearly barred by limitation and has contended that upon that ground the claim for partition should have been dismissed. It is to be observed that limitation was never pleaded by the defendants or either of them and no issue was framed upon the question by the trial Court. From the judgments of the two Courts it is abundantly clear that the point was never raised even in argument and consequently there are no findings upon the question by either of the lower Courts.

(3.) Counsel for the plaintiff-respondents has very properly argued that this point is not open to the appellant as it is an entirely new point upon which findings have not been recorded by the lower Courts. On the other hand counsel for the appellant argues that no findings of fact are necessary to determine this question of limitation because it is clear from the findings contained in the judgment of the lower Appellate Court that the claim was well out of time.