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Jaideo Singh and anr. Vs. Munshi Dhoom Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All419a
AppellantJaideo Singh and anr.
RespondentMunshi Dhoom Singh and ors.
Excerpt:
- - the judge has clearly stated that in a previous suit brought by kunj bihari plaintiff as regards the estate left by champat rai he never claimed any interest in this house. 7. these remarks clearly show that the judge held the partition to have been given effect to. it is based partly on a slip of the pen in the judgment and partly on the judgment not having been as clearly and definitely expressed as was desirable. it is said by his counsel that his meaning in his written statement was that he was the sole heir of dilsukh rai, the joint owner with champat rai, and that he would be satisfied if he retained dilsukh rai's half-share without any one sharing in it......(see the pedigree in the trial court's judgment), yet that more than 12 years before the date of suit champat rai had ceased to have possession, and consequently the plaintiffs claiming as heirs of champat rai were barred by limitation. in this second appeal this finding of the lower appellate court is impugned on the following grounds: firstly, when champat rai died, his widow mt. jamna kunwar came into possession, and the plaintiffs could not sue as reversioners of champat rai during her lifetime; nor could limitation run against them during that lifetime. as regards this plea, the lower appellate court has found that limitation began to run in the lifetime of champat rai, and secondly it would not be interrupted by champat rai's death and the right of the widow to possession. this.....
Judgment:

Ashworth, J.

1. These four appeals arise out of two suits brought by Jaideo Singh and Kunj Behari against Dhum Singh and others for partition of a certain house in Bareilly. It is common ground that the two plaintiffs are the grandson and son respectively of one Bahadur Singh, who was the uncle of one Dilsukh Rai. It is also common ground that the house in question was at one time the joint property of Champat Rai and Dilsukh Rai, although it was a question whether Dilsukh Rai represented himself alone or the whole branch of the family to which he belonged. The suit was resisted by members of Dilsukh Rai's branch and others, but one of them Nityanand, the son of Dilsukh Rai, admitted the claim for partition, provided that he was given his father's share in the house, which he said was one half. The trial Court decreed the suit.

2. On appeal the District Judge found that although the plaintiff's branch of the family or a single member of that branch had been joint with Champat Rai as owners of the house (see the pedigree in the trial Court's judgment), yet that more than 12 years before the date of suit Champat Rai had ceased to have possession, and consequently the plaintiffs claiming as heirs of Champat Rai were barred by limitation. In this second appeal this finding of the lower appellate Court is impugned on the following grounds: Firstly, when Champat Rai died, his widow Mt. Jamna Kunwar came into possession, and the plaintiffs could not sue as reversioners of Champat Rai during her lifetime; nor could limitation run against them during that lifetime. As regards this plea, the lower appellate Court has found that limitation began to run in the lifetime of Champat Rai, and secondly it would not be interrupted by Champat Rai's death and the right of the widow to possession. This appears to me to be correct. Where the original owner has ceased to be in possession and his widow and his reversioners successively take no steps to recover possession, the reversioners will be barred by limitation. The widow, would represent the estate for the purpose of taking action, and the reversioners cannot set up the fact of her being a widow as saving limitation.

3. In this second appeal this finding of the lower appellate Court is impugned on the following grounds: Firstly, when Champat Rai died, his widow Mt. Jamna Kunwar came into possession, and the plaintiffs could not sue as reversioners of Champat Rai during her lifetime; nor could limitation run against them during that lifetime. As regards this plea, the lower appellate Court has found that limitation began to run in the lifetime of Champat Rai, and secondly it would not be interrupted by Champat Rai's death and the right of the widow to possession. This appears to me to be correct. Where the original owner has ceased to be in possession and his widow and his reversioners successively take no steps to recover possession, the reversioners will be barred by limitation. The widow, would represent the estate for the purpose of taking action, and the reversioners cannot set up the fact of her being a widow as saving limitation.

4. The next plea is that the lower appellate Court should not have accepted certain documents as proving a partition between Champat Rai and Dilsukh Rai, because the Munsif regarded these documents as suspicious. The appellant is not entitled to question in appeal the fact of the lower appellate Court finding that the documents were properly executed. This is a finding of fact. No misdirection on the part of the lower appellate Court has been shown to me, nor does it appear from the judgment.

5. The appeal has chiefly been argued on a ground not taken in the memorandum of appeal. It is this. A remark of the District Judge is relied on, namely that

I also find that the partition relied on by the appellants did not in fact take place.

6. A careful reading of the judgment will show that the insertion of the words 'not' was a mere clerical error. The appeal was allowed by the District Judge. If, therefore, the appellants' case rested on an alleged partition, it would be impossible that the appeal would have been allowed if the Judge had meant to find against that partition. Again, it is said that the Judge has in one part of his judgment propounded the question whether the partition was ever given effect to, and it is alleged that question was never answered. This again is to misread the judgment. The Judge has clearly stated that in a previous suit brought by Kunj Bihari plaintiff as regards the estate left by Champat Rai he never claimed any interest in this house. Again we find:

It is clear that even in Champat Rai's time he ceased to have any interest in the house and the heirs of Sheo Sahai remained in exclusive possession thereof.

7. These remarks clearly show that the Judge held the partition to have been given effect to. The partition then showed that the suit for partition now was unsustainable. Further, the Judge seems to have considered whether the suit as a suit for possession could be maintained. He held in effect that he believed certain evidence whereby Champat Rai after the partition had removed the materials on his apportioned share of the land and had taken a sum of money from Dilsukh Rai in exchange for the site awarded to him. Prom that date the Judge held that Champat Rai ceased to be in possession, and consequently the suit was barred by limitation. Of course on this finding the Judge might further have held that Champat Rai from this date ceased to have any title to the property and perhaps his remark:

it is clear from that day Champat Rai ceased to have any interest in the property

was intended to mean this. Any way it is above all question that the District Judge did find facts showing that Champat Rai ceased to have possession from a date before his death, and on this finding he was entitled to hold the suit barred by limitation.

8. I, therefore, find there is no force in this appeal. It is based partly on a slip of the pen in the judgment and partly on the judgment not having been as clearly and definitely expressed as was desirable.

9. I now come to the two appeals of Nityanand. It would appear prima facie on the finding in the other two appeals of the District Judge that no decree could be given against Nityanand. The reason why the District Judge has given a decree against him is because he found that Nityanand admitted that the plaintiffs were entitled as heirs of Champat Rai to joint ownership of the house with himself, but he demanded that he should be given his half share. It is said by his counsel that his meaning in his written statement was that he was the sole heir of Dilsukh Rai, the joint owner with Champat Rai, and that he would be satisfied if he retained Dilsukh Rai's half-share without any one sharing in it. Now it is clear that where a defendant sets up a plea which will give him all the interest in property which he is actually enjoying, that plea cannot be construed as an admission that he is entitled to something less. It may be that the arguments or facts on which he based his claim are wrong, but if his claim is rejected, certain portions of the statement on which it is based cannot be accepted and the rest disregarded. The lower Court having found that the suit was barred by limitation could not use Nityanand's written statement to avoid that conclusion, or decree the suit against Nityanand to a greater extent than Nityanand was willing to confess judgment. In other words, it is not a confession of judgment for one defendant among many to say:

I do not care what the plaintiff gets provided that ho gets nothing from me.

10. For the above reasons I dismiss the Appeals Nos. 139 and 140 with costs and allow the Appeals Nos. 2296 and 2297 with costs throughout.


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