Judgement

JAGANNADHA DAS, J.: The plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one-third share in the suit properties and for partition and recovery of that share. The suit was dismissed as having been barred by limitation and adverse possession. On appeal the District Judge reversed the decision and decreed the suit. The High Court maintained the decree of the District Judge on second appeal. Hence this appeal before us on special leave by the first defendant in the action, who is the appellant before us. The main question that arises in the appeal is whether the plaintiff has lost his right to a one-third share in the suit property by adverse possession.

2. The property in suit belonged to one Venkata Reddy. He died as an infant on August 25, 1927. At that time, the properties were in the possession of the maternal uncles of the father of the deceased Venkata Reddy. One Hanimi Reddy, an agnatic relation of Venkata Reddy, filed a suit O. S. No. 26 of 1927 for recovery of the properties from the said maternal uncles and obtained a decree therein on March 15, 1929. A Receiver was appointed for the properties in February, 1928, during the pendency of the suit and presumably the properties were in his possession. This appears from the decree which shows that it directed the Receiver to deliver possession to the successful plaintiff in that suit. Hanimi Reddy obtained actual possession of these properties on January 20, 1930, and continued in possession till he died on August 16,1936. The first defendant in the present action who is the appellant before us is a son of the brother of Hanimi Reddy and came into possession of all the properties as Hanimi Reddy s heir. The respondent before us is the plaintiff. The present suit was brought on the allegation that the plaintiff and the second defendant in the suit, his brother, were agnatic relations of Venkata Reddy, of the same degree as Hanimi Reddy and that all the three were equal co-heirs of Venkata Reddy and succeeded to his properties as such on his death. It was alleged that though Hanimi Reddy filed the prior suit and obtained possession of the properties thereunder, he did so as one of the co- heirs, with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants in common but that the first defendant, who came into possession on the death of Hanimi Reddy denied the title of the plaintiff and his brother in or about the year 1940. The plaint in the present action was filed originally in the District Munsif s Court on October 23, 1941, and was ordered to be returned for presentation to the District Judge s Court on November 30, 1942. It was actually represented in that Court on December 2, 1942. One of the questions raised in the suit was that the suit was barred by limitation on the ground that it must be taken to have been instituted not on October 23, 1941, but on December 2, 1942. This plea was upheld by the trial Court. On first appeal the District Judge held that the plaintiff is entitled to the benefit of S.14 of the Limitation Act and that the suit must be taken as having been instituted on October 23, 1941, and is, therefore, in time. He accordingly decreed the suit. In the High Court the question as to whether the plaintiff was entitled to the benefit of S.14 of the Limitation Act, though raised was not finally decided. It was held that the possession of Hanimi Reddy was not adverse to the plaintiff and that accordingly he was entitled to the decree as prayed for. The question as to the non-availability of the benefit of S. 14 of the Limitation Act to the plaintiff in the present suit has not been urged before us and the finding of the District Judge that the plaint must be taken to have been validly presented on October 23, 1941, stands. That date must, therefore, be taken to be the commencement of the action for the pur