ORDER

1. LEAVE GRANTED.

2. THE ONLY ISSUE IN THIS APPEAL RELATES TO THE PERIOD OF LIMITATION WITH REGARD TO THE CLAIM OF THE RESPONDENT TO HIS SHARE IN THE FAMILY PROPERTY. THE RESPONDENTS SUIT WAS FILED AGAINST THE APPELLANTS IN 1988. THE TRIAL COURT DISMISSED THE RESPONDENTS SUIT ON THE GROUND OF LIMITATION HOLDING THAT THE RIGHT OF THE RESPONDENT TO A SHARE IN THE PROPERTY AROSE ON THE DEATH OF HIS SURVIVING PARENT, NAMELY, HIS MOTHER WHICH TOOK PLACE IN 1968. THEREFORE, THE CLAIM OF THE RESPONDENT-PLAINTIFF WAS BARRED.

3. THE DISTRICT JUDGE REVERSED THE FINDING OF THE TRIAL COURT HOLDING THAT THE CAUSE OF ACTION IN FACT WOULD NOT ARISE FROM THE DATE OF THE DEATH OF HIS MOTHER BUT FROM THE DATE OF HIS OUSTER. THE HIGH COURT DID NOT INTERFERE WITH THE DECISION OF THE FIRST APPELLATE COURT.

4. IN OUR VIEW, THE CONCLUSION OF THE HIGH COURT AND THE FIRST APPELLATE COURT IS CORRECT. HOWEVER, THE REASONING GIVEN IN SUPPORT OF SUCH CONCLUSION IS FALLACIOUS. THE RESPONDENT HAD COME WITH THE CLEAR CASE THAT HE HAD BEEN OUSTED IN 1968. IF THE REASONING OF THE FIRST APPELLATE COURT AND THE HIGH COURT WERE TO BE ACCEPTED THEN AS THE SUIT HAD BEEN FILED ONLY IN 1988, IT WAS BARRED BY LIMITATION. BUT AS HAS BEEN HELD IN MAHOMEDALLY TYEBALLY V. SAFIABAI1 THE HEIRS OF MOHAMMEDANS (WHICH THE PARTIES BEFORE US ARE) SUCCEED TO THE ESTATE IN SPECIFIC SHARES AS TENANTS-IN-COMMON AND A SUIT BY AN HEIR FOR HIS/HER SHARE WAS GOVERNED, AS REGARDS IMMOVABLE PROPERTY, BY ARTICLE 144 OF THE LIMITATION ACT, 1908. ARTICLE 144 OF THE LIMITATION ACT, 1908 HAS BEEN MATERIALLY RE-ENACTED AS ARTICLE 65 OF THE LIMITATION ACT, 1963 AND PROVIDES THAT THE SUIT FOR POSSESSION OF IMMOVABLE PROPERTY OR ANY 9 INTEREST THEREIN BASED ON TITLE MUST BE FILED WITHIN A PERIOD OF 12 YEARS FROM THE DATE WHEN THE POSSESSION OF THE DEFENDANT BECOMES ADVERSE TO THE PLAINTIFF. THEREFORE, UNLESS THE DEFENDANT RAISES THE DEFENCE OF ADVERSE POSSESSION TO A CLAIM FOR A SHARE BY AN HEIR TO ANCESTRAL PROPERTY, HE CANNOT ALSO RAISE AN ISSUE RELATING TO THE LIMITATION OF THE PLAINTIFFS CLAIM. [SEE, IN THIS REGARD, THE DECISION OF THIS COURT IN MOHD. MOHAMMAD ALI V. JAGADISH KALITA2 (SCC PARA 20).]

5. IT IS NOT IN DISPUTE THAT THE APPELLANTS HAD NOT RAISED ANY ISSUE OF ADVERSE POSSESSION IN THEIR WRITTEN STATEMENT. IN THAT VIEW OF THE MATTER, THE PLEA OF LIMITATION WAS NOT AVAILABLE TO THE APPELLANTS. THE APPEAL IS, ACCORDINGLY, DISMISSED BUT WITHOUT ANY ORDER AS TO COSTS.