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Patel Meghji Dayal by Lrs. and ors. Vs. Patel Jivraj Pragji and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 45 of 1978
Judge
Reported inAIR1984Guj32
ActsLimitation Act, 1963 - Sections 6 and 8 - Schedule - Articles 60, 64 and 65
AppellantPatel Meghji Dayal by Lrs. and ors.
RespondentPatel Jivraj Pragji and ors.
Appellant Advocate D.U. Shah, Adv.
Respondent Advocate J.D. Ajmera, Adv.
Excerpt:
- - 1. 3. thus the challenge on the ground of limitation as well as on that of adverse possession fails......was a minor and the defendant no. 1 who was the uncle of the plaintiff was cultivating the suit fields which form part of the joint family property. the contention raised before the appellate court and this court was that the plaintiff should have filed the suit soon after attaining majority which was presumed to be in 1966. the plaintiff's attainment of majority was based on surmise as there is no evidence on the record to show the exact date of birth of the plaintiff. when the date from which the limitation starts running is not known, it is impossible to hold that the suit is time barred. moreover the suit cannot be held to be time barred even on the ground that the suit should have been filed within three years of alleged adverse possession because, in fact, - there is.....
Judgment:

1. In this second appeal the court had formulated two questions as substantial questions of law. One is pertaining to the adverse possession and the second pertains to limitation. On both these questions the lower appellate court has given a categorical finding holding that the suit was filed within the period of limitation and that the defence of adverse possession was not tenable in the facts and circumstances of the case

2. As regards the limitation the lower appellate court has entered into an exercise of surmise as regards the birth date of the plaintiff which exercise was neither necessary nor proper. The plaintiff was a minor and the defendant No. 1 who was the uncle of the plaintiff was cultivating the suit fields which form part of the joint family property. The contention raised before the appellate court and this court was that the plaintiff should have filed the suit soon after attaining majority which was presumed to be in 1966. The plaintiff's attainment of majority was based on surmise as there is no evidence on the record to show the exact date of birth of the plaintiff. When the date from which the limitation starts running is not known, it is impossible to hold that the suit is time barred. Moreover the suit cannot be held to be time barred even on the ground that the suit should have been filed within three years of alleged adverse possession because, in fact, - there is nothing on the record of the case to show that the defendant No. 1 held the suit field adversely to the plaintiff. The possession of suit fields with defendant No. 1 was for and on behalf of Coparceners and hence it was a joint possession. Therefore, there can be no question of adverse possession at all. A coparcener cannot hold adversely to other coparceners. The story of ouster of the plaintiff by the defendant No. 1 is disbelieved by the courts below and quite rightly so, because the possession was jointly held by both the plaintiff and the defendant No. 1.

3. Thus the challenge on the ground of limitation as well as on that of adverse possession fails.

4. As regards the suit fields being a joint family property, there is a concurrent finding by both the courts below and the same is unassailable on any ground whatsoever. It is, therefore, necessary to uphold the finding of the lower appellate court that the suit fields are the joint family properties of the plaintiff and the defendant No. 1 who are entitled to equal shares.

5. The judgment and the preliminary decree passed by the trial court and upheld by the lower appellate court are hereby confirmed with the direction that the division of the property by metes and bounds shall be taken up immediately and completed as expeditiously as possible considering that the suit was of 1968 and fifteen long years have passed in this litigation. Appeal is dismissed. In the facts and circumstances of the case there shall be no order as to costs.

6. Appeal dismissed.


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