APPAVU MANIGARAN Vs. MUTHUSAWMI PILLAI

JUDGEMENT

(1.) The points pressed are that the suit is barred under Articles 119, 127 and 144 of Schedule II of the Limitation Act, and that the plaintiff cannot maintain the suit without first setting aside Ex. IV. It is not shown that the defendant-appellant contended in his written statement that the suit was barred under Articles 127 and 144. His only contention as to limitation appears to have been that the suit was barred under Art. 119, as the plaintiff has not sued in time to obtain a declaration as to the validity of his adoption. The new pleas of limitation under Articles 127 and 144 involve the decisions of new questions of fact and the appellant cannot be allowed to raise them in second appeal. As to Art. 119, that article has no application to a suit for possession. Jagannath Prasad Gupta v. Runjit Singh 25 C. 354 and Velaga Mangamma V/s. Bandiamudi Veerayya 30 M. 308; 2 M.L.T. 178; 17 M.L.J. 182.

(2.) As to Ex. IV, it is not a deed of sale and Art. 144 of Schedule II, of the Limitation Act, does not apply. Art. 91 does not apply, for a prayer for the cancellation of Ex. IV is not an essential part of the plaintiff's relief. Unni V/s. Kunchi Amma 14 M. 26. The suit is, therefore, maintainable although the plaintiff has not set aside Ex. IV.

(3.) This appeal is dismissed with costs.