Pandrang Rao, J.
1. This is an appeal from the order of the District Judge of Salem, dated 6th February 1933, by which he remanded the suit to the trial Court for fresh disposal after reversing the trial Court's finding on the question of limitation. The suit was instituted for the recovery of possession of about 28 cents of land on the strength of a certain provision in the partition deed of 1914 which was said to have been confirmed by an oral arrangement of 1922. The provision in question was to the effect that if there was any inequality discovered afterwards in the shares allotted by the partition deed, which, according to the partition deed, were to be enjoyed separately thereafter, the person who had excess land in his possession was to make good the deficit in the other share by giving a sufficient portion of land from a certain field adjoining the latter's share therein. The trial Court dismissed the suit on the preliminary ground that the claim was one which fell under Article 120 of the first schedule of the Limitation Act, and that therefore it was barred, whether the cause of action was deemed to date from the partition deed of 1914, or the oral arrangement of 1922, the suit having been brought in June 1931.
2. On appeal the District Judge, without deciding which article of the Limitation Act, governed the suit claim, held that the claim was in time, because in his opinion as soon as any inequality in the shares was discovered the parties to the partition deed 'became joint owners of a defined but undetermined portion of the land' in the particular field mentioned in the partition deed out of which the deficit was to be made good, and 'between co-owners there would be no question of limitation.' It would appear that the learned District Judge thought that the claim was governed by Article 144, Lim. Act. In any case, I find it impossible to accept the view of the learned District Judge that the mere discovery of an inequality has the effect in law of putting an end to the separate ownership created or brought into being by the partition deed of 1914, and of giving rise to a different kind of ownership in respect of the same property, namely, joint ownership The provision in the partition deed as well as the alleged oral arrangement is nothing but a covenant whereby the person whose share shows an excess binds himself to make good the deficit in the other's share, and any suit to enforce this covenant must be deemed to be a suit to enforce the specific performance of a contract and must therefore be governed by Article 113, Lim. Act.
3. In my opinion, the present suit is governed by Article 113, Lim. Act, and as such it is barred if the cause of action is dated from the date of the partition deed or from the date of the oral arrangement in 1922. It is however brought to my notice that apart from these dates a subsequent date is relied upon in the plaint, viz., May 1928 when, it is alleged, the guardian of the minor defendants on their behalf paid a certain sum of money, as and for past mesne profits, and also agreed to give the plaintiffs the extent which he claimed. It will be for the trial Court to decide whether this agreement is true and valid and if so whether it saves the bar of limitation. With this modification the order appealed from is confirmed; in other words, the order remanding the suit for fresh disposal will stand, but it will be the duty of the trial Court to consider and decide whether the suit claim is saved from the bar of limitation by reason of the alleged promise or agreement to give the land in May 1928. In the circumstances of this case, the costs in this Court and in the lower appellate Court will abide the result and should be provided for in the revised decree to be passed by the trial Court.