PATEL MEGHJI DAYAL Vs. PATEL JIVRAJ PRAGJI
LAWS(GJH)-1983-4-16
HIGH COURT OF GUJARAT
Decided on April 12,1983

PATEL MEGHJI DAYAL BY LRS. Appellant
VERSUS
PATEL JIVRAJ PRAGJI Respondents

JUDGEMENT

- (1.) In this second appeal the court had formulated two questions as substantial questions of law. One is pertaining to the adverse possession and the second pertains to limitation. On both these questions the lower appellate court has given a categorical finding holding that the suit was filed within the period of limitation and that the defence of adverse possession was not tenable in the facts and circumstances of the case
(2.) As regards the limitation the lower appellate court has entered into an exercise of surmise as regards the birth date of the plaintiff which exercise was neither necessary nor proper. The plaintiff was a minor and the defendant No. 1 who was the uncle of the plaintiff was cultivating the suit fields which form part of the joint family property. The contention raised before the appellate court and this court was that the plaintiff should have filed the suit soon after attaining majority which was presumed to be in 1966. The plaintiff's attainment of majority was based on surmise as there is no evidence on the record to show the exact date of birth of the plaintiff. When the date from which the limitation starts running is not known, it is impossible to hold that the suit is time barred. Moreover the suit cannot be held to be time barred even on the ground that the suit should have been filed within three years of alleged adverse possession because, in fact, - there is nothing on the record of the case to show that the defendant No. 1 held the suit field adversely to the plaintiff. The possession of suit fields with defendant No. 1 was for and on behalf of Coparceners and hence it was a joint possession. Therefore, there can be no question of adverse possession at all. A coparcener cannot hold adversely to other coparceners. The story of ouster of the plaintiff by the defendant No. 1 is disbelieved by the courts below and quite rightly so, because the possession was jointly held by both the plaintiff and the defendant No. 1.
(3.) Thus the challenge on the ground of limitation as well as on that of adverse possession fails.;


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