1. Two questions have been raised on behalf of the defendants, who are appellants in this case. The first relates to the question of onus of proof with respect to the alleged unchastity of Nithar, a Hindu widow, from whom the plaintiff purchased a one-third share of the property which is the subject-matter of dispute in the present case. But we need not go into that question, because the learned District Judge has, upon a consideration of the evidence of both sides, come to a finding that she is not unchaste.
2. The appeal, however, must succeed on the second contention, namely, that the suit is barred by limitation, having regard to the provisions of Article 11 A of Schedule I to the Limitation Act. The plaintiff, as stated above, purchased a one-third share of the property which belonged to Nithar. The defendant No. 1, on the other hand purchased the entire property belonging to the family of which Nithar was a member and dispossessed the plaintiff from the one- third share purchased by him. The plaintiff thereupon made an application for possession under Order XXI, Rule 100. That application was fully gone into and was disallowed on the 26th August 1914. The present suit was instituted on the 30th November 1916.
3. Now, Article 11A of Schedule 1 to the Limitation Act lays down that in a suit 'by a person against whom an order has been made under the Code of Civil Procedure, 1908...upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order,' the period is one year from the date of the order.
4. The order, as stated above, was passed on the 26th August 1914 more than a year before the institution of the suit. It is true that the question was not raised in either of the Courts below, and we would not have allowed this question to be raised here in second appeal, were it not for the fact that the plaintiff himself in his plaint states these facts. In the fifth paragraph he says: 'That the plaintiff having purchased the one-third share of the jote, be was obliged to object to the aforesaid granting of possession in execution case No. 47 of 1914, but his objection was rejected in the month of Bhadra 1321. Since then the principal defendant has dispossessed the plaintiff from the said one-third share, which he had purchased from Nitharmoyee Dassi, and the said defendant is holding the same'. The order in that case is on the record and shows that the share purchased by the plaintiff was the subject-matter of dispute in that case which is the same as in the present case. The matter was fully gone into in that case and the application of the plaintiff was rejected. The suit, not having been brought within one year from the date of the order, is barred by limitation even upon the facts stated by plaintiff in his plaint.
5. In these circumstances, the appeal must be allowed and the suit accordingly dismissed. But, as the question was not raised in the Courts below, we direct that each party do bear his own costs in all Courts.