Judgment

SARKAR, J. (for himself and Raghubar Dayal, J.): In a certain money suit, being Small Cause Suit No. 9 of 1953, a decree had been passed against Narasimhaswamy and his four sons who were members of a Mitakshara Hindu joint family. In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successors-in-interest are the appellants. The father Narasimhaswamy s share had not been put up for sale because an application for his adjudication as insolvent was then pending. The sale to Sivayya was duly confirmed. Thereafter Sivayya sold the properties purchased by him at the auction to one Prakasalingam. On November 6, 1939, an order was made under O. 21, Rr. 35 (2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to Prakasalingam along with the members of the joint family in actual possession. This order was duly carried out and possession was delivered to Prakasalingam by publishing that fact by beat of drum as prescribed in these rules. Subsequently, Prakasalingam retransferred the properties to Sivayya.

2. On October 16, 1951, Sivayya filed the suit out of which this appeal arises, against the then members of the joint family whose number had by that time increased, and various other persons holding as alienees from them, asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession. The trial Court decreed the suit but held that Sivayya was not entitled to a 4/5th share but only a 2/3rd share because before the decree a 5th son had been born to Narasimhaswamy who had not been made a party to the suit or the execution proceedings and whose share had not consequently passed under the auction sale. Some of the defendants appealed to the High Court of Andhra Pradesh from this judgment. The High Court allowed the appeal on the ground that the suit was barred by limitation under Art. 144 of Schedule I to the Limitation Act. Sivayya had filled a cross objection in the High Court on the ground that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without a discussion of its merits in view of its decision on the question of limitation. Sivayya having died pending the appeal in the High Court, the appellants as his successors-in-interest, have come up to this Court in further appeal under Art. 133 of the Constitution.

3. Various questions had been raised in the trial Court but only two survive after its decision. They are, whether the suit was barred by limitation and whether Sivayya was entitled to a 4/5th share.

4. On the question of limitation, two articles of the Act were pressed for our consideration as applicable to the case. They are Arts. 144 and 120. We consider it unnecessary to decide in this case which of the two articles applies for, in our view, the suit was not barred under either.

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. That 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 coparcener s 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