D.N. Roy, J. - (1.) This is a second appeal arising out of a suit for possession over a house situate in abadi plot No. 6144 specified by ABCD in the sketch map annexed to the plaint and for an injunction restraining the defendants from interfering with the plaintiff's passage to the house in an adjoining plot and further restraining them from preventing the plaintiffs from executing repairs to their house from the side of that passage. A claim for mesne profits was also made. The parties to the suit are descended from one Girdhar Singh who had five sons. The zamindari in village Nagra and the residential quarter known as 'Kot' belonged originally to Girdhar Singh and had later on come to his descendants. The plaintiffs represented the branch of Binayak Prasad Singh who was the son of Govind Narain Singh, one of the sons of Girdhar Singh. The descendants Nos. 1 to 4 represented the branch of Lachhmi Narain Singh, another son of Girdhar Singh; Defendants Nos. 5 to 9 represented the branch of Gopal Narain Singh; defendants Nos. 10 to 16 represented the branch of Sri Narain Singh and defendants Nos. 17 to 27 represented the branch of Jai Sri Narain Singh, who were also the sons of Girdhar Singh. The appeal is filed by Matukdeo Narain Singh, who was defendant No. 1 in the suit.
(2.) In the year 1933 Binyak Prasad Singh filed an application in the revenue Court for the partition of the zamindari property along with the Kot referred to above. An imperfect partition was effected in this partition suit between the co-sharers in 1941. Five pattis were formed. Patti No. 1 went to Binyak Prasad Singh; Patti No. 2 went to Mathura Prasad Singh and Pattis Nos. 3, 4 and 5 went to the other branches of Gopal Narain Singh, Sri Narain Singh and Jai Sri Narain Singh. The site of the Kot on which the houses existed was also divided as amongst these five pattis. Sub-plot 614A was allotted to path No. 1 as also the house which existed over it, which was the subject-matter of the present plaint. The passage to this house stood over plot No. 590 and that passage was also allotted to Patti No. 1. In the scheme of partition that was prepared by the revenue Court it was recorded that each co-sharer will be entitled to get the building which stood on the site which was allotted to him. On the 3rd of May 1942 Binayak Prasad Singh executed a deed of will in favour of the present plaintiffs. The plaintiffs thus became entitled as legatees to the property held by Binayak Prasad Singh. The plaintiffs came to Court upon the allegation that on the 13th of November 1934 when the partition proceedings were still pending Mathura Prasad Singh and Matukdeo Narain Singh dispossessed Binayak Prasad Singh from this house. They contented that in view of the partition made by the revenue Court and in view of the circumstances stated above the suit filed on the 13th of November 1946 was within time and they were entitled to the reliefs stated above.
(3.) Matukdeo Narain Singh defendant No. 1 resisted the suit on the ground that the plaintiffs were not the heirs or legatees of Binayak Prasad Singh and that they were not entitled to use in respect of the house. He contended that the partition proceedings were binding upon the parties and since the defendant had been in possession over the house the plaintiffs were not entitled to dispossess him. He further contended that the suit was barred by limitation under Articles 142 and 144 of the Limitation Act.;