Decided on February 23,1950

Mt. Bhoga Appellant
SURAJPAL Respondents

Referred Judgements :-



Chaturvedi, J. - (1.)IN this second appeal the sole question for determination is whether the appellant -plaintiff's suit was barred by limitation.
(2.)IT is not the form of the relief claimed which determines the real character of the suit for the purposes of ascertaining under which article of the Limitation Act the suit falls. The plaint as a whole is to be examined to see whether it is a declaration properly so -called or whether it is an unnecessary claim and a mere surplusnge and the suit is really suit for possession.
Mt. Bhoga, plaintiff -appellant claims to be the daughter of one Durgaprasad real owner of the disputed portion of revenue paying land. The said Durga Prasad died in 1920 leaving this property in favour of his wife Mt. Ochhi. From the statement of Mt. Bhoga recorded in the trial Court on 1 -2 -1946 it transpires that the defendant remained in possession of the disputed properly after Durga Prasad's death. Mt. Ochhi died in 1937 and the mutation proceedings ended in favour of the defendant on 25 -8 -1937. The plaint alleges that the defendant was not the adopted son of Mt. Ochhi and there was no adoption. It is further alleged that in the mutation proceedings there is a will of Mt. Ochhi dated 26 -3 -37 but this will is not valid. The plaintiff claims that she is the rightful heir of Durga Prasad's property and desires declaration of this right and possession of the property.

(3.)THOUGH the relief claimed in the suit is declaration of right and possession of immovable property, yet if the property used for is held by the contesting defendant under a will, or on the basis of an adoption deed, as has been stated in the plaint, the plaintiff cannot obtain possession without the will and the adoption deed being set aside; and therefore, the suit must be regarded as one brought to set aside the will and the adoption deed, though no relief in these terms is prayed for. If this view is accepted to be correct then the suit must be brought within a period of sis years dating from the plaintiff's knowledge. The lower Courts have not ascertained when plaintiff got this, knowledge. From paras 3 and 4 of the plaint, however, it is clear that the plaintiff's allegation was that she was at her father -in -law's place in District Mainpuri of Uttar Pradesh when Mahila Ochhi died and when mutation proceedings ended in favour of the defendant. Consequently it can be fairly inferred that the plaintiff got the knowledge of the adoption deed or of the will only from mutation proceedings i.e., after 36 -8 -1937. There is nothing either in the written statement of the defendant or on the record to negative this inference or to lead to the conclusion that the plaintiff had any knowledge about the will or the adoption deed before this date. As the suit was filed before 95 -8 -1943 it is dearly within the period of limitation.

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