HIGH COURT OF BOMBAY
GAJENDRAGADKAR,CHAINANI, JJ.
Hubli Panjarapole
Versus
Saraswatevva Bayappa Kala Ghatki
First Appeal No.15 of 1949
Decided On : 29-08-1952
GAJENDRAGADKAR, J. :- This is an appeal by defendants 1 and 9 to 12 against the decree passed by the Civil Judge (S.D.), Hubli, directing them to deliver possession of the properties in suit to the plaintiff. The plaintiff is the daughter of Rayappa and her case was that after the death of her mother Chandawa she was entitled to the properties in suit. These properties are two fields S.Nos.42 and 43 situated at Agrahar Timasagar and a house. These properties belonged to Rayappa who died leaving behind him three sons and four daughterS.The last surviving son was Chandrappa. He died a minor. During, his minority Rayappas widow Chandawa alienated these properties as guardian of her minor son. On 25-9-1900, she mortgaged all the three properties to Tejappa for Rs.1,000. The interest agreed to be paid was 18 per cent, per annum and the period stipulated for repayment was six months. On 18-5-1904, Chandawa sold the two lands to Tejappa for Rs.1,000 and in consequence the house which had been mortgaged by her along with the lands was released from mortgage. It appears that some time before the sale-deed was executed Chandrappa had died by plague. On 29-7-1905, Tejappa made a gift of these two lands to the Hubli Panjarapole. In the present suit Saraswatevva the last surviving daughter of Rayappa claims to be the reversioner of the properties of her brother Chandrappa and she alleges that the alienations effected by Chandrawa were not binding on her and so she claims to recover the possession of the three properties in suit. Chandrawa died on 4-3-1932, and the present suit has been filed on 3-3-1944. Her claim with regard to the house has been dismissed. But she has succeeded in regard to the two lands, and it is with these two lands that we are concerned in the present appeal. 2. The principal point which has been urged before us by Mr. Kalagate on behalf of the appellants is one of limitation. Mr. Kalagate contends that the suit is barred by limitation, because at the time when leave was obtained by the plaintiff under O.1, R.8, to sue the Hubli Panjarapole by its members in a representative capacity, more than 12 years had elapsed after the opening of reveirsion. When the suit was originally filed, Hubli Panjarapole was defendant No.1 by its Chairman Sangappa Nurusavirappa Korvi. This suit was filed in the Court of the Second Class Subordinate? Judge at Hubli, but when it was registered the jurisdiction of the learned Sub-Brdinate Judge had been, enlarged. Even so on 21-2-1947, the plaintiff moved the learned Judge to transfer the suit to the Civil Judge (S.D.) on the ground that the real valuation of the property was more than Rs.5,000 and the learned Judge made an order returning the plaint to the plaintiff for presentation to the, proper Court on the same day. This order is obviously wrong; because when the suit was registered, the learned Judge had pecuniary jurisdiction to try the suit. However, that very day the plaint was presented before the Civil Judge (S.D.). An application was made before him on 2-12-1947, by exh.37 in which the plaintiff alleged that it was necessary to sue the Panjarapole in a representative capacity under O.1, R.8, Civil P.C. She, therefore, asked for leave to convert her suit into a representative one under O.1, R.8. The learned Judge granted the application and ordered notices to be issued to the persons interested in the Panjarapole. After the notices were thus issued, defendants NoS.9 to 12 offered to come on the record and they were added on 8-1-1948. Now, Mr. Kalagates contention is that this is a very stale claim and it may be technically within time on 3-3-1944, but he argues that as it was filed on this day, the suit was defective and would have been dismissed as incompetent. The defect was cured by the application made by the plaintiff on 2-12-1947. But this application cannot help the plaintiff to overcome the difficulty of limitation, because on this date the suit was clearly barre
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