1. The Subordinate Judge was not entitled to find against the plaintiff that the purchase by him was nominal as such an issue was not raised at the trial.
2. He finds that the properties belonged originally to the grandfather of the first defendant and the father of defendants Nos. 2 and 3 who were brothers and members of a joint family. That being so, the title of the first defendant's grandfather must be held to exist unless it is shown that it came to an end by some means known to him. The facts found do not make out any such cessation of the title of the plaintiff's vendor.
3. It is, however, found that the first defendant's father had left the village about forty years before suit, and upon this, the question arises whether the suit of the plaintiff would not be barred. To a suit like this by the purchaser from a member of a joint family who is alleged to have been out of possession at the time of sale, Article 136 of the Limitation Act applies in terms and not Article 127 see Ram Lakhi v. Durga Charan Sen 11 C. 680 and Muthusami v. Ramakrishna 12 M. 292. It is, however, contended on behalf of the respondents that the possession contemplated in Article 136 is actual possession and not such possession as a member of a joint family is presumed to have in the family property until excluded therefrom. We are, however, unable to accept this contention, for, if it were well-founded, the result would be that while in a particular case the member of the family would be himself entitled to institute a suit to enforce his share in the family property if he had not been excluded from enjoyment thereof for twelve years, the right of a purchaser from that member would be barred under the same circumstances. We should refrain from putting a construction which would tend to such anomaly. We think, therefore, that the lower Appellate Court should submit a finding as to whether the plaintiff's vendor was ever excluded from the joint family property, and, if so, for what period before suit and we direct it accordingly.
4. The finding should be submitted within six weeks, and seven days will be allowed for filing objections.'
5. In compliance with the order contained in the above judgment, the lower Appellate Court submitted the following
The High Court directed me to submit a finding on the evidence on record on the following issue:
Whether the plaintiff's vendor was ever excluded from the joint family property, and if so, for what period before suit?
2. The plaintiff's case was that his vendor 'was in joint possession of the property, that is, the produce was being divided between him (1st defendant) on the one hand and the 2nd and 2rd defendants on the other hand. But the 4th defendant's case was that the 2nd and 3rd defendants who were his vendors have been exclusively enjoying the property for the last upwards of forty years and that the 1st defendant did not participate in the profits during the said period. There is no evidence on either side that the 1st defendant had been excluded from the enjoyment of the joint family property. The burden of proving the alleged exclusion would lie on the defendants Nos. 2 to 4. Their case simply was that the 1st defendant and his father had not been in enjoyment of the property for nearly forty years. There being no evidence with regard to the exclusion, I find the issue remitted in favour of the plaintiff.
6. This second appeal coming on this day for final hearing after the return of the above finding, the Court delivered the following
7. The finding is in favour of the appellant. The appeal is allowed and the judgment of the Subordinate Judge is reversed and that of the District Munsif restored with costs in this Court and the lower Appellate Court.