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Musammat Purna Kuar and ors. Vs. Mangat Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in70Ind.Cas.488
AppellantMusammat Purna Kuar and ors.
RespondentMangat Rai and ors.
Excerpt:
litters patent appeal - cross-objections--civil procedure code (act v of 1908), order xli, rule 22, applicability of. - - the appeal must therefore fail......phuljhari executed a deed of gift in favour of musammat purna. she died in 1906, and upon her death musammat jumna brought a suit against musammat purna for her half share of the property left by her deceased father. she obtained a decree against musammat purna on the 21st of january 1908 and in execution of that decree she obtained formal possession on the 6th of may 1908. after this, musammat jumna made a usufructuary mortagage in favour of the present plaintiff. musammat purna brought a suit for pre-emption in respect of the usufructuary mortgage and obtained a decree. she then transferred her rights under the decree to one ram chander and ram chander conveyed those rights to the present plaintiffs. the plaintiffs brought the present suit for possession of certain plots of land.....
Judgment:

1. The only question which has been raised by the appellant in this case is, whether the claim of the plaintiffs is time-barred. The facts are that certain property belonged to one Rehari Rai who died leaving a widow, Musammat Phuljhari, and two daughters, Jumna and Purna. Musammat Phuljhari executed a deed of gift in favour of Musammat Purna. She died in 1906, and upon her death Musammat Jumna brought a suit against Musammat Purna for her half share of the property left by her deceased father. She obtained a decree against Musammat Purna on the 21st of January 1908 and in execution of that decree she obtained formal possession on the 6th of May 1908. After this, Musammat Jumna made a usufructuary mortagage in favour of the present plaintiff. Musammat Purna brought a suit for pre-emption in respect of the usufructuary mortgage and obtained a decree. She then transferred her rights under the decree to one Ram Chander and Ram Chander conveyed those rights to the present plaintiffs. The plaintiffs brought the present suit for possession of certain plots of land which originally formed the sir of Musammat Jumna. It is contended on behalf of Musammat Purna that the claim of the plaintiff is time-barred. This contention is, in our opinoin, untenable. The right of Musammat Jumna accrued upon the death or her mother, and she asserted that right in the suit in which she obtained a decree against Purna in 1908. Limitation as against her should be computed from the date on which formal possession was obtained by Jumna against Purna. From that date the suit is within twelve years. It is also within twelve years from the date of the death of Musammat Phuljhari, Dr. Sen argued that, when Musammat Phuljhari made a gift in favour of Musammat Purna, she became ex-proprietary tenant of the sir lands and, therefore, the right of Musam mat Jumna must be deemed to have become extinguished as regards the sir land. This contention is without force, inasmuch as Musammat Jumna never acquired ex-proprietary rights in succession to Musammat Phuljhari but she became the owner of the zemindari including the sir upon the death of Musammat Phuljhari as heir to her father. Her title, as we have said above, came into existence in 1906. It cannot, therefore, be said that the claim is in any sense time-barred. The appeal must therefore fail.

2. There are cross-objections on behalf of the plaintiff-respondent. It has been held that to appeals under the letters Patent, the provisions of the Code of Civil Procedure to cross-objections do not apply see Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec. (N.S.) 898.

3. The result is that the appeal and the cross-objections are both dismissed with costs.


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