Back
PATNA HIGH COURT
Lakshmikanta Jha and Reuben JJ.
Gokaran Prasad Singh
Versus
Chhotey Narayan Singh
Appeal from Original Decree No. 181 of 1946 ;
Decided On : JANUARY 24, 1951
PARTITION - Suit for - Claim for separate takhta - Maintainability - Res judicata - Applicability - Limitation - Applicability.
Fact of the Case:
The plaintiffs, grandsons of Nath Sahay Singh, filed a suit for partition, claiming a separate takhta of their share in tauzi No. 2542 in village Kendua. The trial court decreed the claim against deft. 1 and defts. 2 to 5(a), but dismissed it against other defts. Deft. 1 appealed.
Finding of the Court:
The appellate court held that the plaintiffs were entitled to 6 dams and odd share from out of the 3 annas and odd share in the tauzi which stands recorded in Register D in the name of deft. 1, and that the plaintiffs were entitled to mesne profits from deft. 1. The court also held that the plaintiffs' claim was not barred by limitation.
Issues: 1. Whether the plaintiffs are entitled to claim 6 dams and odd share from deft. 1? 2. Whether the plaintiffs are entitled to claim any compensation or mesne profits from deft. 1. 3. Whether the plaintiffs' claim is barred by limitation?
Ratio Decidendi: 1. The court held that the plaintiffs were entitled to claim 6 dams and odd share from deft. 1 because: a. The certificate sale, through which deft. 1 acquired the share, was held to be illegal, void and inoperative in a previous suit. b. The plaintiffs had recovered joint possession of the share in 1934, as evidenced by documentary evidence. c. The matter was res judicata, as the same point had been raised and decided in the previous suit. 2. The court held that the plaintiffs were entitled to claim compensation from deft. 1 because Article 120 of the Limitation Act governs the present case and there is no bar of limitation. 3. The court held that the plaintiffs' claim was not barred by limitation because Article 120 of the Limitation Act governs the present case and there is no bar of limitation.
Final Decision: The appeal was dismissed with costs.
Lakshmikanta Jha, J.
1. This appeal by deft. 1 arises out of a suit for partition. The pltls. who are the grandsons of one Nath Sahay Singh, allege that they own 7 dams & odd share in tauzi No. 2542 in village Kendua, which has been included in Register D in the share, recorded in the names of (1) deft, 1, (2) defts 2 to 5(a), & (3) defts. 21 to 23(a) & 31 to 34, & their prayer is that a separate takhta of their share be allotted to them after partition. They have also claimed Rs. 449/12 as compensation for the period antecedent to the suit & future mesne profits till possession is delivered to them of their takhta in case they are found to be out of possession.
2. The trial Ct. has decreed the claim in favour of the pltfs. against deft. 1 & defts. 2 to 5(a) with costs, but dismissed it against other defts. A preliminary decree for partition has accordingly been made.
3. The pltfs. grandfather, Nath Sahay, owned 7 dams 3 kauris 12 bauris & odd share in tauzi No. 2542 in mauza Kendua & he was in possession of his share as co-sharer malik till he gave his share in ijara on 5-1-1904, to two persons, Lal Mohammad & Mulliok Turab Ali. This ijara was redeemed in 1920. One Mahendra was also a co-sharer malik of this tauzi & his interest was 7 dams & odd. eqal to the share of Nath Sahay, & one Janki Prasad Singh also held 5 dams & odd share in this tauzi as a co-sharer malik. Thus the total interest of Nath Sahay, Mahendra & Janki was 1 anna & odd in this tauzi. There were other co-sharer landlords also, but we are not concerned with them in this suit. On 3-9-1906, the 1 anna & odd share, representing the total interest of these three persons, was sold for arrears of cese & auction purchased by one Jugeshwar Dayal, Mukhtar, at a certificate sale, & he got his name mutated in register D in respect of the share purchased by him. According to the trial Ct. he did not get possession over this property. & this finding has not been challenged before us. Subsequently, Jugeshwar sold 6 dams & odd share, which he described as the interest of Mahendra, & the entire 5 dams & odd share of Janki (total 11 dams & odd), to Gokaran Prasad Singh, who is deft. 1 in the present action. He also sold the remainder, describing it as the entire 7 dams & odd share of Nath Sahay & the remaining 1 dam & odd share of Mahendra, to one Ramsaran Singh, ancestor of defts. 2 to 5 (a). But Mahendra. notwithstanding the certificate sale, sold the entire 7 dams & odd interest to one Masoom Ali in 1909, who in his turn, sold this share to one Waris Ali, ancestor of defts. 31 to 34, & in 1913 Waris Ali sold one-fourth of the interests purchased by him from Masoom Ali to one Man-zur Ali, predecessor-in-interest of defts. 21 to 23(a).
4. On 30-8-1918, Waris Ali & Manzur Ali brought Title Suit No. 290 of 1918 in the Ct. of the Munsif, 3rd Ct. Gaya, for a declaration that the sale held in execution of the certificate is illegal & void & also for recovery of possession if they were held by the Ct. to be out of possession. Thia suit was dismissed by the trial Ct. but the judgment of the trial Ct. was revsd. by the appellate Ct. & it was held that the certificate sale was illegal, void & inoperative. The judgment of the appellate Ct. was also upheld by the H. C. in s. A. NO. 215 of 1920 (Ex. Ali(1)). Now the succesors-in-interest of Waria Ali & Masoom Ali are in possession of 7 dams & odd share in accordance with the above-mentioned transfers.
5. In 1928 the pltfs. brought Title Suit No. 97 of 1928 in the Ct. of the Munsif, 3rd Ct. Gaya, impleading, among others, the heirs of. Ramsaran Singh as defts. 1 to 4, who are represented by defts. 2 to 5(a), Gokaran Singh as deft. 5 who m deft. 1, the heirs of Manzur Ali as defts. 20 to 22, who are represented by defts. 21 to 23. (a) & the heirs of Waris Ali as defts. 31 to 34, who are represented by defts. 31 to 34. This suit of the pltfs. was for a declaration of their title & recovery of possession with mesne profits in respe
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
