1. Bal Mukand is alleged to have purchased two shops and a ahata vide sale deed dated 29th Feb. 1884 (Ex. PW 3/3). He died in the year 1922 and the property owned by him is alleged to have been inherited by three of his sons, widow of a pre-deceased son and son of another pre-deceased son. On 29th April, 66, Suit No. 195 was filed by two grandsons from two branches for an injunction restraining the tenants of the ahata once owned by Bal Mukand from paying the whole of the rent of the descendants of the remaining two branches as one branch had become extinct and claimed that half of the rent was payable to the plaintiffs and the other half to the other two branches who were also impleaded as defendants. A decree for Rs. 580/- representing the past three years' share of rent was also claimed. The defendants contested the suit and it was pleaded that Thakar Dass alone was the exclusive owner of the ahata and prayed that the suit be dismissed. Both the courts below found that the ahata was joint of the four branches in which the plaintiffs had half share and the other half belonged to defendants Nos. 3 to 6 jointly and defendant No. 7 in equal shares. However, both the courts below held the suit to be time-barred as the same was not filed within six years of the denial of plaintiffs' title vide written statement of Thakar Dass dated 21st Oct. 1956 (Ex. R. 1) filed in the previous litigation in which the plaintiffs' right was denied to their knowledge. The residuary Art. 120 of the old Limitation Act Art. 113 of the Limitation Act. 1963 (hereinafter referred to as the Act) was applied to the facts of the present case. The plaintiffs have come up in R. S. A. No. 1357 of 1969.
2. The plaintiffs filed another civil suit No. 196 with regard to the two shops against tenants and impleaded the other co-sharers as defendants and claimed similar decree of injunction besides claiming a decree for Rs. 500/- towards the arrears of rent regarding their share for the past three years. That suit was also contested by the defendants. Both the courts below found that the shops also belonged to Bal Mukand and the defendants of the four branches were co-sharers. The suit was found to be within limitation and the claim of arrears in respect of Rs. 500/- was also found to have been proved with the result that the suit was decreed as prayed for. Some of the defendants have filed R. S. A. No. 1305 of 1969 in this Court. Counsel for the parties are agreed that common questions are involved in both the appeals and hence the two are being disposed of together. R. S. A. No. 1357 of 1969.
3. The learned counsel appearing for the plaintiff appellant has urged that the court below was in error in applying residuary Art. 113 whereas in fact Art. 110 or Art. 65 of the Act would apply to the present case. On the other hand, learned counsel for the defendants has urged that the court below was right in applying Art. 113 of the Act.
4. After hearing the counsel for the parties I am of the view that the present case would be governed either by Art. 110 or Art. 65 of the Limitation Act and not Art. 113 as held by the courts below. The learned counsel for the respondents were unable to show that the findings of the courts below were erroneous when they found that the ahata in dispute was joint of the parties which was once purchased by Bal Mukand, their common ancestor. Accordingly, I shall proceed on the basis that it came to the parties (barring the tenants) as descendants of Bal Mukand. In this situation either the property can be treated as joint Hindu family property, then Art. 110 of the Act would apply and the limitation would be 12 years from the date their right in the property was denied and the defendants have only shown that the right of the plaintiffs was denied to their knowledge only on 21st Oct. 1956 vide Ex. R1. The suit filed on 29th April, 1966 is well within 12 years and hence the suit could not be held to be time-barred.
5. Even if it is assumed that it is not proved that the property belonged to joint Hindu family, in that situation it will belong to them as co-sharers and the right of a co-sharer can be acquired by adverse possession if no action is taken by that co-sharer within 12 years of denial of his share to his knowledge. On this basis also the other co-sharers or Thakar Dass could perfect his title if the present suit had not been filed within 12 years of denial of title on 21st Oct, 1956 but the suit has been filed within 12 years as prescribed by Art 65 of the Act. Hence on this basis also the suit is clearly within limitation.
6. The court below was of the opinion that the residuary Art. 113 of the Act was applicable to the present case and in holding this view, decision in Moti Ram v. Devi Das, AIR 1935 Pesh 95 was followed. The learned Additional Judicial Commissioner who decided that case was of the opinion that the suit brought in that case was for declaration with a consequential relief for an injunction and therefore, Art. 129 of the old Limitation Act was applied which is equal to 113 of the Act and the suit filed by a coparcener was held to be time-barred. I am not in agreement with the reasoning adopted in this decision on view of two specific Articles 110 or 65 as one of the two would be applicable to the facts of the present case in any event. When we have specific article which can be applied to the facts of case we cannot fall back upon the residuary article. Hence I dissent from the decision.
7. Moreover on the facts of the present case I find that it can safely be treated as a suit for declaration of a title as co-sharer and for the recovery of share of rent on the basis of the title as a co-sharer instead of claiming a decree for joint possession as admittedly the ahata in dispute was in possession of the tenants. If the ahata in dispute had been in possession of the defendants-co-sharers and the suit for joint possession had not been filed then it may have been said that a suit for mere declaration is not competent as another relief was also available which was necessary to be claimed. But on the facts of the present case I find that relief to claim share in the rent was the correct relief besides claiming a decree for declaration of title. Hence on the facts of the present case I am of the view that the form of the suit was correct and the limitation for bringing the suit was 12 years and not 6 years as held by the Court below. The Peshawar Court had relied on Atma Ram v. Godhu Ram. AIR 1933 Lah 712. That is not a case on the point of limitation but was only on the form of the suit. Hence that decision does not help the contesting defendants-respondents on the point of limitation.
8. The aforesaid view of mine finds full support from a recent decision of the Supreme Court in Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 77. The following observations therefrom deserve to be quoted (at p. 79)
'It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on half of the co-sharer who is not possession and the right of such co-sharer would be deemed to be protected by the trustees.'
9. For the reasons recorded above, the finding of the court below on the point for limitation is upset and it is held that the suit was clearly within limitation.
10. As regards the claim for Rs. 580 as plaintiff's share in the past three year's rent, the plaintiffs have clearly proved that they are entitled to this amount and the respondents have not been able to show if this amount does not represent the share of the plaintiffs. Hence the plaintiffs are held entitled to decree for Rs. 580/-.
11. For the reasons recorded above R. S. A. No. 1357 of 1969 is allowed and after setting aside the decree passed by the Courts below, the plaintiff's suit is decreed as prayed for with costs throughout. The costs will be payable by defendants co-sharers and not the tenants.
R. S. A. No. 1305 of 1969.
12. As regards this appeal, the counsel for the defendant-appellants has not been able to urge any point worth noticing because I find from a reading of para 6 of the judgment of the Lower Appellate Courts under attack that the only point raised was that the rate of rent was Rs. 240/- and not as pleaded by the plaintiffs. The finding of the trial court that the shops jointly belonged to the co-sharers was neither disputed before the lower appellate court nor has been disputed before me. Therefore, the only point that remains is as to what is the rate of rent. The learned counsel for the appellants has not been able to show how the finding arrived at by the courts below is erroneous in law. Hence there is no merit in this appeal and the same is dismissed with no order as to costs.
13. Order accordingly.