1. This is a defendant's appeal and arises out of a suit for possession. The property in dispute is a house in the city of Cawnpore.
2. There were three brothers Rajaram, Lala and Gajadhar. All the three brothers had come to a partition. With the house in dispute only Lala Ram and Gajadhar were concerned. The plaintiff obtained a simple money decree against Rajaram and in execution thereof purchased the judgment-debtor's share on 21-8-1928. Rajaram died during the execution proceedings and the name of his minor son Ganga Prasad was brought on the record by an order of the Court dated 7-7-1928. Exception was taken to the sale of the house on behalf of the minor son, but the objection was dismissed. Formal possession was delivered to the decree-holder on 19-12-1928. In 1934 he instituted a suit for arrears of rent against Mt. Bhagwania. The suit was dismissed with a finding that she was not in occupation of it. On 11-1-1943, the present suit was instituted by the decree-holder against Lala, the brother of Rajaram. By a subsequent order dated 8-7-1943, Ganga Prasad was also cited as a defendant. The main plea, in defence, was that the claim was barred by limitation. The learned Munsif decreed the suit; and this decree was, with a slight modification, affirmed, on appeal, by the learned Temporary Civil and Sessions Judge of Cawnpore. He confined his decree to the half share of Bajaram Ganga Prasad has come to this Court in second appeal.
3. The learned counsel contends that, on the facts found, the claim was barred by limitation. The learned Civil and Sessions Judge has found that the evidence led by the plaintiff, that he or someone on his behalf was in possession of the house within twelve years of the suit, was unworthy of credit. There is no clear finding as to whether Ganga Prasad, the appellant, was or was not in possession of the house; but, he has found that Ganga Prasad was not in joint possession with his uncle Lala Ram; he has, in affect, found that the latter was in possession of the whole of the house.
4. It is not denied that Article 142 of the Limitation Act, will apply to this case, inasmuch as there is a clear allegation of dispossession in para. 2 of the plaint. I, however, feel that the plaintiff's claim is, in any view of the case, barred by limitation even if Article 144 and not Article 142 of the Limitation Act, is held applicable. The case is fully covered by 1928 A.L.J 5731. The facts were briefly these:
“The predecessor-in-title of the plaintiff obtained a simple money decree against the grand-father of defendant 1. In execution of this decree he brought to sale and purchased an undivided one-third share of a house which was owned jointly by his judgment-debtor and certain others who were represented by defendants 2 to 8.
The purchase was made in 1900, and on 16-3-1903, formal possession was delivered.
The judgment-debtor continued in actual physical possession along with his former co-owners, who were his relations.
In 1916, the purchaser brought a suit for partition against the other co-owners and obtained a decree for the separation of his one-third share. In 1917 he applied to be placed in actual possession. This application was opposed. On 13-4-1921, a suit for actual physical possession was brought by the plaintiff.”
5. Lindsay, J. who delivered the judgment of the Court, observes at p. 576:
In the case of purchase of an undivided share in joint property the only possession which can be delivered is joint possession and that can be done only as provided by O. 21, R. 96 of the CPC. That was what was done in the case now before us and it follows that limitation began to run against the plaintiff from 16-3-1903 when he obtained formal delivery.
From that date he became entitled to seek actual possession of the one-third share he had purchased by demanding a partition. There was no need for him to wait for the co-operation of the other joint owners for this purpose: he could have got a separation of his share by impleading them as defendants in a suit for partition. Any co-owner of joint property can call for partition at any time as long as co-ownership exists.”
6. The above, to my mind, furnishes a complete answer to the present suit. It was open to the decree-holder to obtain the fruits of his decree, that is apply for actual possession, within twelve years of the date of the decree. That he never did. After the expiry of twelve years, not only did he lose his remedy, but his right was also extinguished.
7. The learned counsel for the respondent seeks to support the judgment under appeal on the strength of 1934 A.L.J 9732 That case, to my mind, has no bearing, inasmuch as no question of a decree ever arose, but, assuming that it did, it is hardly of any assistance to the plaintiff. The learned Judges gave effect to the defence that the suit was barred by limitation.
8. Reliance was also placed on 167 I.C 3713, a decision of this Court. That case, again, has nothing in common with this case, because again there was no question of any decree.
9. It was a plain and simple suit as between cosharers, in which one cosharer claimed exclusive possession and pleaded that the plaintiff had, in consequence of the lapse of time, lost his title.
10. In my opinion, the present case is, having, regard to what fell from Lindsay J. in 1928 A.L.J 573, clearly barred by limitation.
11. I allow the appeal, set aside the decree of the lower appellate Court, and dismiss the plaintiff's suit. Under the circumstances of the case, I direct the parties to bear their own costs throughout. Leave for a Letters Patent appeal is refused.
12. Appeal allowed.