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Sita Ram Dube and ors. Vs. Ram Sunder Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1928All412
AppellantSita Ram Dube and ors.
RespondentRam Sunder Prasad and ors.
Cases Referred and Jang Bahadur v. Hanwant A.I.R.
Excerpt:
- - the finding of fact of the lower appellate court, which was binding upon the judge of this court in second appeal, was that there was no reliable evidence to show that the plaintiff or his predecessor had ever enjoyed physical possession of any portion of the house since the time of his purchase. in the case now before us the plaintiff failed to prove this and his suit was therefore rightly dismissed. and if they failed to oust him before the expiry of 12 years their title as joint owners would become extinguished with regard to any portion of the property so held adversely......in the year 1900 and the purchaser, on 16th march 1903, was given formal possession over his 1/3rd joint share in the manner provided by order 21, rule 96, civil p.c. the judgment-debtor, notwithstanding this, continued in actual physical possession of the house along with his former co-owners, who were his relations.3. in 1916, the purchaser brought a suit for partition against the other co-owners and obtained a decree for the separation of his 1/3rd share, and in 1917 he applied to be placed in actual possession of his separated share. this application was opposed on behalf of the present defendant 1 on the ground that he was in actual possession and was not bound by the partition decree to which he was not a party. the objection of defendant 1 was sustained with the result that the.....
Judgment:

Lindsay, J.

1. The question for decision in this appeal is one of limitation. The trial Court and the first appellate Court dismissed the plaintiff's suit on the ground that it was barred by time. The learned Judge of this Court, whose judgment is before us in appeal, was of the contrary opinion: he has held that the suit was within time and has given the plaintiff a decree for possession.

2. The facts to be considered are these: The predecessor-in-title of the plaintiff obtained a simple money decree against the grandfather of defendant 1, a minor named Babban Dube. In execution of this decree he brought to sale and purchased an undivided 1/3rd share of a house which was owned jointly by his judgment-debtor and certain others who are now represented by defendants 2 to 8. The purchase was made in the year 1900 and the purchaser, on 16th March 1903, was given formal possession over his 1/3rd joint share in the manner provided by Order 21, Rule 96, Civil P.C. The judgment-debtor, notwithstanding this, continued in actual physical possession of the house along with his former co-owners, who were his relations.

3. In 1916, the purchaser brought a suit for partition against the other co-owners and obtained a decree for the separation of his 1/3rd share, and in 1917 he applied to be placed in actual possession of his separated share. This application was opposed on behalf of the present defendant 1 on the ground that he was in actual possession and was not bound by the partition decree to which he was not a party. The objection of defendant 1 was sustained with the result that the plaintiff brought the present suit on 13th April 1921, claiming actual physical possession of the one-third share. The suit was framed as a suit for recovery of possession after dispossession by defendant 1. The plaintiff, claiming to have been in possession since the time of his purchase, pleaded that he was dispossessed in September 1917, when defendant 1 'interfered with has possession', and again on 29th June 1918, when his application for possession under the partition decree was shelved by the executing Court.

4. The defence was that the suit was barred under Article 142, Lim. Act, because the plaintiff had not been in possession within 12 years from the date of the suit. The finding of fact of the lower appellate Court, which was binding upon the Judge of this Court in second appeal, was that there was no reliable evidence to show that the plaintiff or his predecessor had ever enjoyed physical possession of any portion of the house since the time of his purchase. The only possession he could show was the formal possession obtained on 16th March 1903, in the manner stated above. On this finding the suit was dismissed as time barred.

5. The learned Judge of this Court, in reversing the decree of the first Court of appeal, observes in his judgment that there was no proof of adverse possession of defendant 1 prior to the partition suit of 1916. He remarks in this connexion that the one-third interest acquired by the plaintiff was 'never in fact ascertained', and that the plaintiff as pur-purchaser could not possibly oust his judgment-debtor

unless he obtained the co-operation of the other owners and took formal proceedings for that purpose.

6. He came to the conclusion, therefore, that there had been no ouster before the share was 'ascertained' by the partition suit in 1916, and that limitation could not have begun to run earlier than the date of the partition decree.

7. In cur opinion no question of adverse possession arose for determination in the suit: such a question does not arise in a suit to which Article 142, of the Schedule to the Lim. Act, applies. It is not for the defendant to such a suit to raise and prove adverse possession in order to show that the suit is time barred. The plaintiff has to prove possession and dispossession within a period of 12 years prior to the suit. In the case now before us the plaintiff failed to prove this and his suit was therefore rightly dismissed. The judgment of the learned Judge of this Court is not in accord with the principles laid down in the following two cases of this Court: Rajendra Kishore v. Bhagwan Singh [1917] 39 All. 460 and Jang Bahadur v. Hanwant A.I.R. 1921 All. 9. In those cases it was held that where possession has been delivered to a purchaser in execution in accordance with law, that would, as between the parties to the proceedings for delivery of possession, give a new start for the computation of limitation and the possession of the defendant (i.e., the judgment-debtor) would be deemed to be a fresh invasion of the plaintiffs' rights and a new trespass upon the property.

8. In the case of purchase of an undivided share in joint property the only possession which can be delivered is joint possession and that can be done only as provided by Order 21, Rule 96, Civil P.C. That was what was done in the case now before us and it follows that limitation began to run against the plaintiff from 16th March 1903, when he obtained formal delivery.

9. From that date he became entitled to seek actual possession of the 1/3rd share he had purchased by demanding a partition. There was no need for him to wait for the co-operation of the other joint owners for this purpose: he could have got a separation of his share by impleading them as defendants in a suit for partition. Any co-owner of joint property can call for partition at any time as long as co-ownership exists.

10. It is not correct to say that the 1/3rd share acquired by the plaintiff was not 'ascertained.' The share, a 1/3rd share, was certainly ascertained though it had not been physically defined by a partition by metes and bounds.

11. As we have said, the question of adverse possession did not at all arise, but it may be observed that if the judgment-debtor, in spite of the formal delivery of possession to the plaintiff retained actual possession as has been found, it is difficult to see how his possession could be otherwise than adverse. The execution sale had put an end to his title-he ceased to be a co-owner of the property, and his occupation after that would be that of a trespasser upon the joint possession of all the co-owners. And if they failed to oust him before the expiry of 12 years their title as joint owners would become extinguished with regard to any portion of the property so held adversely. And it would follow that after the lapse of 12 years in such a case the joint owners could not, in a suit for partition, include any portion of the property to which their joint title had been lost. Joint owners by delaying to sue together for ejectment of a trespasser in wrongful possession of a portion of the joint property, or by delaying to have partition in order to assert their separate rights to actual possession in accordance with their shares, cannot stop the running of time in favour of the trespasser.

12. For those reasons we hold that the plaintiffs' suit was time barred as was held by the first appellate Court. We allow this appeal, set aside the decree of the learned Judge of this Court and restore the decree of the first appellate Court. The appellants to have their costs of this appeal.


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