Sachidanand v. Mangilal — 1966 DIGILAW 214 (RAJ)

JAGAT NARAYAN, J.—This is a miscellaneous appeal under O. 41, rule l(u) C.P.C. against a judgment of the Senior Civil Judge, Gangapur, remanding a suit under order 41 rule 23 C.P.C. 2. One Ram Chander was the owner of a shop. Ram Chanders descendants formed a joint Hindu family and owned this shop in undivided shares. Ghisa and his sons owned half share in this undivided shop which was sold in execution of a decree of Johrilal at an auction sale. This half undivided share of the shop was purchased by Ghudmal. A sale certificate was issued in his favour on 14.8.39 and symbolic possession was delivered to him under order 21, rule 35(2) and order 21, rule 96 on 11.9.39. Ghudmals sons Mangi Lal and Prahalad Kumar instituted the present suit for partition of the shop and for delivery of possession to them over their half share after partition on 22.7.59. Kanchan and Manohari who owned one-fourth of the shop and Sachidanand and Babulal who owned one-fourth were impleaded as defendants. They contested the suit inter alia on the ground that it was barred by limitation. The trial court accepted this plea and dismissed the suit. Against that decree the plaintiffs preferred an appeal. The Senior Civil Judge, Gangapur, held that the suit was within limitation and remanded the suit for trial court in accordance with law. Against that order the present miscellaneous appeal has been filed by Sachidanand defendant No. 3. 3. It may be stated here that the plaintiffs alleged that Kanchan was in occupation of the whole of the shop and he executed a rent-note in favour of Ghud Mal on 4.9.49 for half the shop and continued to pay rent for it upto 25.3.55. This allegation is however denied by Kanchan and the other defendants. 4. On 24.1.58 the plaintiffs served a notice on the defendants asking them to give possession over half the shop to them. Sachidanand and Babulal sent a reply on 19.2.58 in which they alleged that the plaintiffs had no right in the shop, that it belonged to a temple and that they themselves were the Pujaris of the temple. 5. In the trial court the contention on behalf of the defendants was that article 138 of the Limitation Act was applicable. Sachidanand and Babulal sent a reply on 19.2.58 in which they alleged that the plaintiffs had no right in the shop, that it belonged to a temple and that they themselves were the Pujaris of the temple. 5. In the trial court the contention on behalf of the defendants was that article 138 of the Limitation Act was applicable. As however symbolic possession was given to Ghudmal over the shop on 11-9 39 that article has no application as was held in Basavantappa vs. Dasappa(l) and Shevantibai vs. Janardan(2). 6. The other article which was pressed before me is Article 144. Reliance was placed on Laxminarasamma vs. Ranganayakemma (3) and some other decisions. In these decisions the decision of the Madras High Court in V.C. Thani Chettiar vs. Dakshinamurthy (4) was followed. The same view was taken in M. Narasimhaswami vs. M.C. Venkata (5). That decision came up for consideration before their Lordships of the Supreme court in Manikayala Rao vs. Narasimha-swammi (6) and was reversed. The decisions relied upon on behalf of the appellant can no longer be considered to be laying down good law. 7. The facts of the Supreme Court case were these. A decree was passed against Narasimhaswamy and his four sons who constituted a joint Hindu family. Narasimhaswamy was declared an insolvent. The undivided share of his four sons amounting to 4/ 5th in the joint family property was put to sale in execution of the decree on 21.12.36. It was purchased by one Sivayya. Sivayya transferred this undivided share to Prakasalingam after purchase and symbolic possession under order 21, rule 34(2) and order 21, rule 96 was delivered to the latter, on 6.11.39. Prakasalingam re-transferred the property to Sivayya who instituted a suit for partition on 16.10.55. The High Court on appeal dismissed the suit on the ground that it was barred by limitation under Article 144. Before their Lordships of the Supreme Court two articles of the Limitation Act were pressed for consideration as applicable to the case—Art. 144 and 120. As symbolic possession was delivered to the predecessor of Sivayya on November 6, 1939 the suit was within limitation under article 144 also if that article had been applied. Their Lordships did not therefore consider it necessary to decide categorically that Art. 144 did not apply to such a suit. As symbolic possession was delivered to the predecessor of Sivayya on November 6, 1939 the suit was within limitation under article 144 also if that article had been applied. Their Lordships did not therefore consider it necessary to decide categorically that Art. 144 did not apply to such a suit. But on the basis of the observations made in it no other view is possible. It was observed in para 5— "As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. The article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour". Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at p. 188; ( AIR 1953 SC 487 at p. 491). It would therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case Vyapuri vs. Sona-mma Bai Ammani ILR 39 Mad. 811: (AIR 1916 990 (2) (F.B.)). 8. Again in para 10 it was observed— "We wish to observe here that this aspect of the matter exposes the anomaly that seems to arise from the application of Art. 144 to this case. 811: (AIR 1916 990 (2) (F.B.)). 8. Again in para 10 it was observed— "We wish to observe here that this aspect of the matter exposes the anomaly that seems to arise from the application of Art. 144 to this case. If Prakasalingams possession under the order of November 6, 1939 was no possession in law because, as is contended, he was not entitled to possession at all, then it would be difficult the hold that at that time somebody else was holding the property adversely to him. Since Prakasalingam or his successor Sivayya was not en titled to possession till after the decree in a suit for partition brought by him Art. 144 would seem to be inapplicable to that suit (for partition)". 9. As held by their Lordships in the above case the present respondents were not entitled to possession of what they had purchased till after a partition had taken place. Their only right was to sue for partition. Art. 144 deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of 12 years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. As the plaintiffs were not entitled to possession till after a partition suit had been decreed, Art. 144 can have no application to a suit for partition of the present nature. 10. In my opinion Art. 120 is the only article which is applicable to the present suit. This article prescribes a period of 6 years commencing from the date when the right to sue accrues. As was held by their Lordships of the Supreme Court in Mt. Rukhmabai vs. Laxminarayan(7) and C. Mohammad Yunus vs. Syed Unnissa(8) the right to sue accrues for the purpose of Art. 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it. According to the allegations made in the plaint the cause of action to the plaintiffs accrued on receiving the reply dated 19.2.58 sent by Sachidanand and Babulal to their notice dated 24.1.58. In his written statement Sachidanand has alleged in para 19 of the additional pleas that the cause of action within Art. 120 accrued to Ghudmal earlier when certain proceedings took place in 1947-48 before the Assistant Record Officer. In his written statement Sachidanand has alleged in para 19 of the additional pleas that the cause of action within Art. 120 accrued to Ghudmal earlier when certain proceedings took place in 1947-48 before the Assistant Record Officer. It will be for the trial court to decide when the cause of action within Art. 120 accrued to the plaintiffs. The trial court will also decide whether or not Kanchan was a tenant of the plaintiffs as alleged. It will decide all questions of fact and law arising on the pleadings of the parties. The only question which has been decided by me is that Art. 120 of the Limitation Act governs the suit. 11. The miscellaneous appeal is decided as indicated above. In the circumstances of the case, I leave the parties to bear their own costs of this appeal. 12. Let the record be returned to the trial court forthwith.