A.P. Srivastava, J. - (1.) THIS is a Plaintiff's appeal, that arises out of a suit for possession and mesne profits The property described in Schedule 'B' of the plaint is a part of a bigger property mentioned in Schedule 'A' which originally belonged to several persons. Smt. Nanhi Begam Respondent No. 1 owned half share in it. Lala Jagan Lal deceased predecessor -in -interest of the Appellant owned one -fourth share. The remaining one fourth share was shared equally by Shah Mohammad Khan and Abdul Wahid Khan. Shah Mohammad Khan filed a suit No. 116 of 1935 in the Munsif's Court against the other co sharers for partition of his one -eighth share in the property. A preliminary decree was passed on the 21st October, 1935 in which the shares of the various co -sharers in the property were declared and actual partition was directed. Quras were prepared and ultimately by a final decree dated the 30th of May 1936 the red Qura was allotted to the Plaintiff of that suit, Shah Mohammad Khan and the green Qura was allotted to Nanhi Begam the present Respondent No. 1. Ja
(2.) RAN Lal who owned one fourth share was dead by that time and the present Appellant and Respondent No. 24 in whose favour he had executed a will had taken his place. The yellow Qura was allotted to them. Abdul Wahid Khan, the remaining co sharer, was given the remaining Qura which was of purple (Uda) colour. Shah Mohammad Khan and the heirs of Abdul Wahid Khan who had died by that time took possession of their respective Quras. Mst. Nanhi Begam however continued in possession of the remaining two Quras, viz. the green Qura and the yellow Qura. The Appellant and Respondent No. 24 did not get the decree executed and did not recover possession through court over the yellow Qura allotted to them. They however brought suit No. 86 of 1946 on the 4th of September 1940. The suit was brought in respect of that portion of the property which had been included in the earlier partition suit in the yellow and the green Quras. The Plaintiff's alleged in that suit that the property in the green and the yellow Quras was jointly owned and possessed by them and Smt. Nanhi Begam. They sought the partition of their half share in that property. That suit was contested by Smt. Nanhi Begam on various grounds and was ultimately dismissed on the 29th March, 1947. Soon afterwards on the 20th of October 1947 the Appellant along with Respondent No 24 filed the suit out of which the present appeal has arisen. In this suit they described the entire property which had been divided in four Quras in suit No. 116 of 1935 in Schedule 'A'. In Schedule 'B' they described that part of the property which had been included in the yellow Qura in that suit. After giving the earlier history of the litigation relating to the property they said that in view of the decree in suit No. 116 of 1935 they were really the owners of the property in Schedule 'B' (yellow Qura property) and were entitled to possession over the same. As Nanhi Begam had been in wrongful possession of the property they claimed Rs. 600/ - as mesne profits from her for the three years preceding the suit. The Defendants who were impleaded in that suit besides Mst. Nanhi Begam were the other persons who had shared the property when it was joint and undivided and some proforma Defendants. The suit was contested by Smt. Nanhi Begam alone. She did not deny that the property in the yellow Qura had been allotted to the Plaintiffs in the earlier decree in suit No. 116 of 1935. But the main pleas which she raised were that as the Appellants had not got that decree executed and had allowed her to remain in possession of the property they had lost their right in the property and the suit was barred by the provisions of Sections 11 and 47 Code of Civil Procedure and Article 142 of the Limitation Act.
(3.) THE suit was tried by Sri Khali Ahmad Khan, Civil Judge, Moradabad. He held that the property over which the Plaintiffs claimed possession had been allotted to them in the earlier suit No. 116 of 1935, that the Plaintiffs had never been in possession of the property and it had all along, been in the possession of Smt. Nanhi Begam and that the suit was barred by Section 11 as well as Section 47 Code of Civil procedure. He did not accept the plea that the suit was barred by limitation. Finding that the Plaintiffs were entitled neither to possession nor to mesne profits he dismissed the suit.;