- (1.) THE unsuccessful plaintiffs in both the Courts below are the appellants.
(2.) THE case in brief is as follows: THE plaintiffs filed a suit for petition and separate possession of the suit properties into 8 shares and to allot 7 shares to them. THE schedule mentioned properties are the properties of the father of the plaintiffs, who died 18 years ago leaving behind the plaintiffs and the second defendant as the legal heirs. According to the Mohammedan Law, the plaintiffs are entitled to 7/8th share and the second defendant is entitle dot 1/8th share. One Bibijan filed O.S.No.175 of 1962 on the file of District Munsif Court, Tiruttani against Sheik Abdul Saheb, junior paternal uncle of the plaintiffs and their mother the second plaintiff and others for declaration of her right to the properties and for permanent injunction on the basis that she had purchased the property from the second defendant under a registered sale deed dated 31.9.1960. THE plaintiffs were then minors and they were not parties in that suit. However, it was decreed on 26.3.1965 and the first defendant filed an appeal in A.S.No.348 of 1965 before District Court, Chengalpattu and the appeal was partly allowed declaring the plaintiff's title only to 1/8th share of her vendor and the decree for injunction was set aside and directed the plaintiffs to seek remedies for working out her 1/8th share separately by petition. THE plaintiffs filed Second Appeal No.1354 of 1966 before this Court and the appeal was allowed on 16.10.1972 confirming the judgment and decree of the lower appellate Court. It was also held by this Court that the sale deed executed by the second defendant in favour of Bibijan is not binding on the plaintiffs in that suit, who were then minors and the Plaintiffs are at liberty to file a suit for partition in respect of their 1/8th share in the properties. Thus, the first defendant has got only 1/8th share in the properties by virtue of the sale deed executed by the Plaintiff's mother the second defendant. THE plaintiffs and the second defendant are therefore co-owners of the suit properties. THE first defendant refused to divide the suit properties into 8 shares and give the plaintiffs separate possession of 7 shares and hence the suit. The first defendant resisted the suit and contended that the plaintiffs are not entitled to claim any relief. The first plaintiff was aged about 30 years and the second plaintiff was aged about 27 years on the date of suit. The plaintiffs have lost their right to the properties by the first defendant's open, peaceful and uninterrupted and adverse possession for more than 12 years from the time of their purchase. The claim of the plaintiffs is barred by time and is liable to be dismissed. They are not entitled to claim 7/8th share in the properties and they cannot rely upon the judgment in O.S.No.175 of 1962. The suit is liable to be dismissed. The trial Court framed 8 issues and on behalf of the plaintiffs. P.W.1 was examined and Exs.A-1 to A-3 were marked. On the side of the defendants D.Ws.1 and 2 were examined and Exs.B-1 to B-13 were marked. The trial Court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S.No.36 of 1984 on the file of Sub Court, Kancheepuram and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this the plaintiffs have come forward with the present second appeal. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: " (1) Whether the defendants have preferred title from the date of ale by adverse possession of from the date of decision rendered in S.A.No.1354 of 1966. " (2) Whether the failure on the part of plaintiffs to file the suit within 3 years from the date of attaining majority would disentitle them from filing the suit. Heard the learned counsel of both sides.
(3.) IT is not in dispute that the suit property originally belonged to one Khalesha Saheb and plaintiffs 1 to 3 were the children and the second defendant was the wife. The second defendant conveyed the suit property under Ex.B-1 dated 31.12.1960 in favour of the first defendant for discharging the mortgage debt for herself and on behalf of the minor children. IT is also admitted that the first defendant filed a suit against the second defendant and brother of Khalesha Saheb in O.S.No.175 of 1962 on the file of District Munsif Court, Thiruthani for permanent injunction and obtained a decree. But, however, in the appeal, it was held that the second defendant, according to Muslim Law, cannot act as a guardian for the minors and, as such, the sale in entirety will not be valid and it would be binding only the 1/8th share. Ex.A-1 is the copy of the judgment. The matter was taken in Second Appeal as S.A.No.1354 of 1966 and the same was also dismissed. Ex.A-2 is the copy of the judgment. There is also a direction that the minors, who are the plaintiffs herein, can work out their rights for partition in separate proceedings relating to their shares. Based upon this direction only, the plaintiffs filed the present suit for partition claiming 7/8th share in the suit properties. Per contra, the first defendant took a plea that she is in possession and enjoyment of the properties even since 1960 and she had also prescribed the title by adverse possession. Apart from that, the plaintiffs on attaining majority, have not chosen to file the suit for partition within three years and, as such, the suit is also barred by limitation. Learned counsel for the appellants/ plaintiffs contended that the plaintiff's share of the suit properties is intact and it was not affected by the sale effected by their mother. There is no animus against the plaintiffs to enjoy the properties adverse to that of the minors and the starting point of limitation could only be from the date of judgment of this Court in second appeal and not from the date of sale. The first defendant himself filed the earlier suit for declaration of her title on the basis of the sale deed and she could only perfect the title by adverse possession by enjoyment of the properties 12 years from the date of the final adjudication only. The title of the plaintiffs has not been found by this Court and the suit having been filed within 12 years, it ought to have been decreed. ;