1. This appeal has arisen out of a suit for partition of the homestead land described in the plaint with the buildings thereon and delivery to the plaintiff of his one-third share thereof. The only point urged in this appeal is that the suit is barred by limitation under the provisions of Article 11-A, Lim. Act, inasmuch as such a suit should have been brought within one year of an order dismissing under Order 21, Rule 99 an application made by the plaintiff for possession of the whole of this homestead. Rule 103 of Order 21 directs that such an order of dismissal is conclusive subject to the result of a suit to establish the right claimed in his application under Order 21, Rule 97 and, under Article 11-A, Lim. Act, that suit must be brought within one year. But the plaintiff does not seek to establish the right which he claimed in his application under Order 21, Rule 97, i.e. exclusive possession of the homestead. He now applies for partition of the homestead and possession of his one-third share after partition. In these circumstances Article 11-A, Lim. Act, has no application.
2. In the principal decision referred to on behalf of the appellant, viz. Ganpat Rai v. Husaini Begum (1921) 8 AIR All 92, the circumstances were somewhat different and, as the learned Judge in his judgment in that case remarks, 'each case of this sort will require to be judged with reference to its own facts.' No doubt the Court held in that case that where, under Order 21, Rule 99, possession of the whole has been refused, the decree-holder could not subsequently bring a suit for possession of a two-fifth share more than one year after the order under Order 21, Rule 103, but there the opposite party was claiming throughout the whole of the subject-matter of the suit (and this point was emphasized by the learned Judge in deciding that suit), whereas in this case the opposite party in the proceedings under Order 21 was claiming only her one-third share and the plaintiff is not now disputing her right to that share so that he had no reason to bring a suit to reverse the order passed under Order 21, Rule 99. Finally in that case the learned Judge held that there was something fishy in the claim in that suit. In the other two decisions referred to on behalf of the appellant i.e. Baldeo v. Kanhaiya Lal (1920) 24 CWN 1001 (PC) and Bhimappa v. Irappa (1902) 26 Bom 146 the circumstances were entirely different. On the other hand the decision in Shanmugam Pillai v. Panchali Ammal (1926) 13 AIR Mad 683, in which the circumstances were exactly similar, supports the view I have expressed and which was taken by the Courts below. The appeal is dismissed with costs.