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Harmukhgauri Vs. Harisukhprasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom191
AppellantHarmukhgauri
RespondentHarisukhprasad
Excerpt:
.....act ix of 1871, schedule ii, articles 132 and 60 - suit by hakdar against original grantee--suit by sharer of hak against another sharer--desaigiri allowance. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91)..........latter description is a suit for money received by the defendant for the plaintiff's use, and the period of limitation is three years, as proscribed by article 60. it is true that this is not the view which was expressed in the case to which the district judge refers--chhaganlal v. bapubhai i.l.r. 5 bom. 68 but it is to be observed that the question raised and argued in that case was whether the 'hak' in dispute was moveable or immoveable property, and whether the period of limitation was six years, as alleged by the defendant, or twelve years as contended by the plaintiff. it was never argued that a shorter period than either might possibly apply, and the question of the applicability of article 60 was not even considered. had this argument been presented to the court, it is more than.....
Judgment:

Melvill, J.

1.We think that the District Judge is correct in his opinion that Article 132, Schedule II of Act IX of 1871 applies to suits which are brought by a 'hakdar' against the person originally liable for payment of the 'hak', and not to suits by one sharer in a vatan against another sharer, or alleged sharer, who has improperly received the plaintiff's share of the 'hak.' A suit of the latter description is a suit for money received by the defendant for the plaintiff's use, and the period of limitation is three years, as proscribed by Article 60. It is true that this is not the view which was expressed in the case to which the District Judge refers--Chhaganlal v. Bapubhai I.L.R. 5 Bom. 68 but it is to be observed that the question raised and argued in that case was whether the 'hak' in dispute was moveable or immoveable property, and whether the period of limitation was six years, as alleged by the defendant, or twelve years as contended by the plaintiff. It was never argued that a shorter period than either might possibly apply, and the question of the applicability of Article 60 was not even considered. Had this argument been presented to the Court, it is more than probable that it would have prevailed.

2. Under the view which we now take we must reverse so much of the decrees of the Courts below as awards to the plaintiff the sum of Rs. 499-8-0 and costs in proportion. In other respects the decrees are confirmed. The respondent to bear the costs of this second appeal. The parties to bear their own costs in the Courts below.


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