SREEMUTTY CHAND BIBI Vs. LAL MOHAMED, AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES HIS WIDOW SREEMUTTY CHAMPA BIBI

JUDGEMENT

(1.) THIS is a suit between a sister and a brother, in which the plaintiff claims her share of the properties left by her father who died 37 years before the date of the institution of the suit. The Munsif decreed the suit and the learned District Judge has dismissed it on the ground that it is barred by limitation. The principles to be applied in cases of this sort will be found set out in the decisions of this Court in the cases of Ayennessa Bibi v. Sheikh Isuf 14 Ind. Cas. 722 : 16 C.W.W. 849 and Faizuddin Khan v. Reju Akub 28 Ind. Cas. 22 : 21 C.L.J. 192. It appears to us, on reading the judgment of the learned District Judge, that he fully appreciated the legal point in this case and having done so, his findings as to the facts cannot be attacked in second appeal. It is contended that the possession of the brother cannot be adverse unless it is shown that there was a demand made by the sister which was refused. Though this contention finds some support in the decision in the case of Shurfunnissa Bibee Chowdhrain v. Kylash Chunder Ganopadhya 25 W.R. 53, it cannot be laid down as a test applicable to all cases of this sort. It is found that the plaintiff in this case gave up her rights shortly after her father s death and that the defendant has exercised exclusive right for all those years to the knowledge of the plaintiff. If the plaintiff gave up her rights and never asserted them, obviously it could not be proved that there have been a demand and a refusal. We dismiss this appeal with costs.