JUDGMENT

This second appeal has been filed at the instance of defendant against the judgment of reversal. Learned trial Court dismissed the suit of the plaintiff and the first appeal which was filed by him has been allowed by the impugned judgment and decree by decreeing the suit.

2. The facts necessary for disposal of this second appeal are that a suit for declaration and injunction and for delivery of possession of Khasra No. 1349 area 4.09 decimal and Survey No. 1350 area 2.20 decimal be delivered to the plaintiff Ravibhan Prasad (respondent No. 1 herein). According to the plaintiff defendant No. 1 Indrabhan is his real brother and they were also having one elder brother namely Suryabhan, who had died in the year 1946. Further the case of the plaintiff is that the suit property (Survey No. 1349 and 1350) was owned by the father-in-law of their elder brother Suryabhan namely Ramsanehi. According to the plaintiff, Ramsanehi gave the suit property to his daughter (wife of Suryabhan). After the death Suryabhan in the year 1946, the defendant No. 1 being the elder brother got the suit property mutated in his name, although both of them were having possession on it. Apart from the suit property certain other ancestral property was also there. Further it has been pleaded that the ancestral property as well as suit property was partitioned between the plaintiff and defendant in the year 1964. The property which fell in the share of plaintiff has been described in para 6(A) while the property which fell in the share of defendant Indrabhan has been described in para 6(B) and since then both the parties are possessing their respective shares which they obtained in partition. According to plaintiff the suit property fell in his share in partition and he was accordingly possessing the same.

3. It is further the case of the plaintiff that in the year 1988 defendant-lndrabhan forcibly dispossessed him from the suit property as a result of which he assembled a Panchayat and on being pacified by Pancha to defendant Indrabhan, the possession of suit property was delivered to the plaintiff back. However again defendant Indrabhan took illegal possession of the suit property by ousting the plaintiff. Hence a suit for declaration and possession has been filed by the plaintiff on 3-11-1988.

4. The defendant Indrabhan denied the plaint averments by filing the written statement and pleaded that suit property is not owned by the plaintiff and the same was given to him and it was never partitioned. He also setup a plea of adverse possession on the suit property and also pleaded that the suit is barred by time.

5. Learned trial Court framed necessary issues and after recording the evidence of the parties dismissed it on merits as well as on the ground of limitation holding that suit was time barred and further came to hold that the defendant had acquired bhumiswami right by adverse possession on the suit property.

6. The first appeal which was filed by the plaintiff has been allowed by the impugned judgment and decreed his suit.

7. In this manner this second appeal has been filed by the defendant Indrabhan in this Court.

8. During the pendency of this second appeal, the defendant-Indrabhan died and his LRs who are present appellants were brought on record.

9. This Court on 21-1-2011 admitted the appeal on the following substantial questions of law:—

1. “Whether the property acquired by a daughter by way of gift from her father in view of para 126 of Hindu Law, can be treated to be an ancestral property ?”

2. Whether the suit filed by the plaintiff is within limitation ?”

10. Shri Jha, learned counsel for the appellants submitted that it is plaintiff's own case that the suit property was owned by the wife of eldest brother of plaintiff and defendant namely Suryabhan. It is also the case of the plaintiff that it has not been disputed by defendant that eldest brother Suryabhan had died in the year 1946 and after his death wife of Suryabhan had also died and they died issueless. Further it has been submitted by learned Counsel that since it is plaintiff's own case at the suit property was given by Ramsanehi to his daughter who was the wife of Suryabhan in gift and because Suryabhan and his wife died issueless, the property in dispute would devolve in the male members of her husband's family. Learned counsel submits that the property in dispute cannot be said to be an ancestral property and in this context he has invited my attention to Article 221 of Mulla's Hindu Law (21st edition). By inviting my attention to Article 221(3) of the said book it has been put-forth by learned counsel that the property inherited by a person from collaterals such as brother, uncle etc. or property inherited by him from a female e.g his mother will be his separate property, which cannot be said to be ancestral property.

11. Learned counsel also invited my attention to Article 126 of Mulla's Hindu Law (21st edition) and submits that this Article speaks about the Will and bequests from relations and if the property is given in gift to a female by her parents it will be her stridhan and thus said property cannot be blended in the ancestral property. Learned counsel by inviting my attention to Article 225 and also sub-Article (2a) has contended that doctrine of co-parcenery cannot be applied to a case of Hindu female who has acquired immovable property from her father because she is not a co-parcener. In this context learned counsel has invited my attention on two decisions of Supreme Court Mallesappa Bandeppa Desai v. Desai Mullappa alias Mallesappa, AIR 1961 SC 1268 and Pushpa Devi v. Cit, New Delhi. , (1977) 4 SCC 184 : AIR 1977 SC 2230. Hence it has been put-forth by learned counsel that the plea setup by plaintiff that property of daughter of Ramsanehi who was wife of plaintiff's and defendant's eldest brother Suryabahan could not be blended with the ancestral property and therefore it could not be partitioned.

12. By addressing on substantial question of law No. 2 it has been canvassed by learned counsel that the suit was filed on 3-11-1988 which was ex facie barred by time because 12 years prior to the date of filing of the suit, the plaintiff was not in possession of the suit property and therefore learned First Appellate Court erred in law in holding the suit to be within limitation. Learned counsel submits that learned trial Court while deciding the Issue No. 6 has categorically found that suit is barred by time. Hence, it has been prayed by learned counsel that by setting aside the impugned judgment passed by learned First Appellate Court, the judgment and decree passed and trial Court be restored.

13. On the other hand Shri K.P Mishra learned Senior Counsel argued in support of impugned judgment and submitted that defendant Indrabhan himself admitted in the written statement filed by him in an earlier suit C.S No. 83-A/1980 (Jageshwar Prasad v. Ravibhan and Indranbhan) and in this suit disputed property of present suit (Survey No. 1349 and 1350) was also the subject-matter along with with other immovable properties. According to learned Senior Counsel present defendant Indrabhan by filing his written-statement in that suit admitted that the suit property of this suit was blended with the ancestral property and thereafter the same was partitioned between Indrabhan and Ravibhan (defendant and plaintiff respectively of the present suit) and in the said partition the suit property fell in the share of plaintiff Ravibhan Prasad and therefore the defendant cannot turn back from his own admission which he made earlier in his written statement filed in that suit. Hence the contention of learned Senior counsel is that whether the said property could be blended in the pool of ancestral property or not, since it has already been put to rest in the earlier round of litigation, therefore, now it cannot be re-adjudicated.

14. By addressing on the point of limitation that suit is barred by time it has been submitted by learned Senior Counsel that finding of learned First Appellate Court holding the suit to be within time is not perverse and in this regard he has invited my attention to findings of learned First Appellate Court from para 16A onwards and put emphasis on para 21 of the impugned judgment and submitted that the plaintiff's witnesses have categorically proved that the plaintiff was possessing the suit property from the year 1964 to 1988 and therefore the suit which was filed on 3-11-1988 cannot be said to be barred by time. Hence, it has been prayed that this appeal be dismissed.

15. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

Regarding substantial question of law No. 1:

16. Before dealing with the contention of learned counsel for appellants on this substantial question of law I would like to consider the contention of learned Senior Counsel for respondent No. 1 that in the earlier round of litigation in Civil Suit No. 83-A/1981 filed by Jageshwar Prasad against Ravibhan (present plaintiff) and Indrabhan (present defendant), the present defendant Indrabhan who was arrayed as defendant No. 2 in that suit admitted in his written statement of that suit that in the year 1964 the partition took place between the two brothers and suit property (Survey No. 1349 and 1350) after blending it with the ancestral property it was partitioned and the suit property fell in the share of present plaintiff Ravibhan. I do not find any merits this contention for the simple reason that on bare perusal of the written-statement filed by Indrabhan who was arrayed as defendant No. 2 in that suit, nowhere it has been admitted by him that suit property after it was blended along with the ancestral property, in partition it fell in the share of plaintiff. He did not even plead that suit property of the present suit was also the subject-matter of the earlier suit. On bare perusal of the plaint of the earlier suit (83-A/1981) this Court finds that the present disputed property (Survey No. 1349 and 1350) was not the subject-matter of that suit. Earlier suit was filed by one Jageshwar Prasad but lateron he died and his LRs Mst. Devi and 7 others were brought on record as plaintiffs. Since the present disputed property was not the subject-matter of earlier suit, the contention of learned senior counsel cannot be accepted that there is an admission of defendant Indrabhan that the suit property fell in the share of plaintiff in the partition which took place in the year 1964 after blending it with the ancestral property.

17. Now I shall consider the contention of learned counsel for appellants as to whether the suit property which was of the wife of Suryabahan could be blended along with the ancestral property or not. Admittedly Suryabhan was the eldest brother of plaintiff and defendant. The plaintiff's own case is that the suit property was owned by father of Suryabhan's wife who gifted it to his daughter (wife of Suryabhan). Said Suryabhan died in the year 1946 and his wife also lateron died and both of them died issueless. Since the property in dispute was of father of Suryabhan's wife and it was gifted to her, the same would become her stridhan in view of Article 126 of the Mulla's Hindu Law (21st edition). Hence for all practical purpose, it is hereby held that suit property was the stridhan of Suryabhan's wife and if that would be the position it cannot be said to be the ancestral property of plaintiff and defendant because the ancestral property means all property inherited by male Hindu from his father, father's father or father's father's father (see Article 221 of Mulla's Hindu Law). The property inherited from collaterals and property inherited from female would be excluded from the ancestral property. In this context Article 221(3) of Mulla's Hindu Law is quite clear, which reads thus:

221(3) Property inherited from collaterals — Property inherited from females-Excluding the case of property inherited from a maternal grandfather, it may be said that the only property that can be called ancestral property, is property inherited by a person from his father, father's father, father's father's father. Property inherited by a person from any other relation is his separate property, and his male issues do not take any interest in it by birth. Thus, property inherited by a person from collaterals, such as a brother, uncle etc. or property inherited by him from a female, e.g His mother, is his separate property.

(emphasis supplied)

By analyzing the aforesaid provisions of Hindu Law it emerges that the property of Suryabhan's wife which was given to her by her father was her stridhan and it cannot be said to be an ancestral property and if that would be the position, I am of the view that the said property cannot be blended with the ancestral property. In this regard Article 225 and particularly sub-Article (2a) of Mulla's Hindu Law 21st Edition may be seen and I would like to quote Article 225(1) and (2a) as under:—

225. Property thrown into common stock.— (1) Property which was originally the separate or self acquired property of a member (coparcener) of a joint family may, by operation of the doctrine of blending, become joint family property, if it, has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established. It will neither be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son, or from the mere failure of a member to keep separate accounts of his earnings. So also acts of generosity or kindness should not be construed as admissions of legal obligation. A permissive use of separately acquired property by coparceners cannot raise a presumption that the property belongs to the joint family unless the acquirer throws such property into common stock. Separate property thrown into the common stock is subject to all the incidents of joint family property.

(2) xxx xxx

(2a) The basis of the doctrine is the existence of coparcenary and coparcenary property, as well as the existence of the separate property of a coparcener. The doctrine cannot be applied to the case of a Hindu female, who has acquired immovable property from her father, for she is not a coparcener.

A Hindu female cannot be a coparcener and the doctrine of blending cannot apply to her. This was re-affirmed by the Supreme Court.

18. Thus, since a Hindu female cannot be a coparcener and the doctrine of blending of her own property cannot apply to her, therefore, the property in dispute could not be blended with the ancestral property, the same could not be partitioned. In this context the decision of Supreme Court Mallesappa Bandeppa Desai (supra) para 11 may be taken into consideration wherein it has been held that doctrine of co-parcenery cannot be invoked to a female as her stridhan and similar view has been again taken by the Supreme Court in Smt. Pushpa Devi (supra), wherein, the Apex Court placed reliance its earlier decision of Mallesappa Bandeppa Desai (supra). Hence because the suit property was the stridhan of Suryabhan's wife, the same could not be blended with the ancestral property and could not be partitioned which took place in the year 1964 between the plaintiff and defendant. I have already held hereinabove that in earlier round of litigation there is no such admission of defendant that suit property was firstly blended with ancestral property and thereafter it was partitioned between him and his brother Ravibhan.

19. The substantial question of law No. 1 is thus answered that the property acquired by Suryabhan's wife who was the daughter of Ramsanehi cannot be treated to be an ancestral property of plaintiff and defendant since it was given to her by her father by way of gift and was her stridhan.

Regarding substantial question of law No. 2:

20. The learned trial Court while deciding issue No. 6 has categorically held that the suit of the plaintiff is barred by time holding that he is not possessing the suit property for 12 years from the date of filing of the suit and by that time the defendant already perfected his title by adverse possession. Further it has been held by that Court that indeed defendant is possessing suit property since 1958. The finding of learned trial Court is based on revenue record. Shri Mishra, learned senior counsel by inviting my attention to the findings of learned First Appellate Court para 16(A) onwards has submitted that learned First Appellate Court after appreciating the oral and documentary evidence categorically came to hold in para 21 that the order passed by SDM in the proceeding of section 145, Criminal Procedure Code dated 3-11-1966 (Ex. D/7) and the order of Revisional Court dated 8-4-1977 (Ex. D/8) is wiped out from the statement of plaintiffs witnesses. I cannot accept such contention. If against a judicial order the witnesses of plaintiff are deposing contrary to it, the credential value of their testimony cannot override the order passed on judicial side by the SDM which has been affirmed by the Revisional Court. On bare perusal of order of SDM dated 3-11-1976 in the proceedings of 145, Criminal Procedure Code, this Court finds that it was categorically held that defendant Indrabhan (appellant of this appeal) was in possession of the suit property two months prior to date of attachment which was 16-11-1973. This finding has been affirmed by learned Sessions Judge in revision on 8-4-1977 (Ex. D/3). Therefore, even if the finding of learned trial Court holding that defendant-appellant is possessing the suit property since 1958 is ignored, this has been proved by these two documents that defendant is possessing the suit property, since September, 1973 and if this plea is taken to be starting point of limitation, the suit which was filed on 3-11-1988 was ex facie barred by time. On going through the order of SDM (Ex. D/7) this Court finds that it was specifically directed to Supurdgidar to deliver the possession of suit property to defendant. It is well settled in law that possession of Supurdgidar in the proceedings under section 145, Criminal Procedure Code shall be deemed to be of the person for whom he is possessing the property attached and therefore for all practical purpose it would be deemed that he (supurdgidar) was possessing the suit property for defendant. In this regard the decision of P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 placed reliance by learned counsel for appellants throws sufficient light on this point.

21. The substantial question of law No. 2 is thus answered that plaintiff's suit was time barred.

22. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree of learned First Appellate Court is set aside and the judgment and decree passed by learned trial Court is restored.

23. Looking to the facts and circumstances, parties are directed to bear their own costs. Counsel fee according to the schedule, if pre-certified.

Appeal allowed.