C. M. LODHA, J. - (1.) THIS is a defendants' second appeal arising out of a suit for partition.
(2.) ONE Jagannath Purohit had four sons viz. Hardev, Shivedhan Das, Narsinghdas and Ganesh Das. Hardev and Narsinghdas died issueless. Shivedhan Das had one son Moolchand; defendant No. 2 Ganesh Das had three sons, Durgadas and Sangi Das, who are defendant-appellants in this case and one Baijnath, who went away in adoption outside the family. Ganesh Das and Moolchand mortgaged the house in question which is situated in Bikaner for Rs. 1300/- in favour of Sheonarain, father of respondent No. 1 Agarchand for Rs. 1300/- by a registered mortgage dated 8-8-3939. This house originally belonged to Jagannath and consequently Moolchand had half share in it and the other half share belonged to Durga Das and Sangi Das. Moolchand sold away his 1/2 share for Rs. 4000/- to the plaintiff Agarchand by registered sale-deed dated 20-9-1950 marked Ex. 1 on the record. On 19-9-1962 Agarchand filed the present suit in the Court of Civil Judge, Bikaner alleging that he had purchased 1/2 share in the house from Moolchand and had also got possession of a few apartments from Moolchand at the time of sale, but Durgadas and Sangi Das had dispossessed him of those apartments on 5-9-1962. He, therefore, prayed that a decree for partition of 1/2 share in the house in dispute may be granted in his favour and possession of the same may be handed over to him after partition by metes and bounds. Both Durgadas and Sangi Das filed joint written-statement and pleaded that no partition had taken place between them and Moolchand and that the plaintiff had never got possession of any specific portion of the disputed property. It was pleaded that no cause of action had accrued to the plaintiff on 5-9-1962, and therefore, the suit is barred by time. Moolchand, however, did not file any written statement and was proceeded against ex parte. After recording the evidence of the parties the learned Civil Judge, Bikaner passed a preliminary decree for partition in favour of the plaintiff and declared that the plaintiff is entitled to get 1/2 share in the house in dispute. He also appointed a Commissioner for carrying out partition by metes and bounds. Dissatisfied with the judgment and decree of the trial court, the defendants Durgadas and Sangidas filed appeal in the Court of District Judge, Bikaner but were unsuccessful and consequently they have come in second appeal to this Court. Various questions had been raised in the lower courts but only one survives now in this appeal and that is whether the suit is barred by limitation? No other point was argued by the learned counsel for the appellants. On the question of limitation, two articles of the Limitation Act of 1908 were pressed for consideration as applicable to this case. They are Arts. 142 and 120. The lower Court applied Art. 141 and held the suit to be within limitation. Learned counsel for the appellant urged that the plaintiff's suit for possession of immovable property is based on title and possession and dispossession or discontinuance of possession, while he was in possession of the property and therefore Art. 142 applies. He has invited my attention to the allegations contained in para No. 5 of the plaint and also to the contents of the sale-deed Ex. 1. In para No. 5 of the plaint it is stated that at the time of the sale, Moolchand had handed over possession of 'gumbheria' etc. to the plaintiff, who put his lock over the 'gumbheria' which was broken open by the defendants on 5 9-1962. In the sale-deed Ex. 1 also it is mentioned that possession of the 'ora' on the eastern side, 'gumbheria' thereunder, a 'sal' a Tibari' and a "gumbheria' thereunder had been handed over to the plaintiff vendee at the time of sale. On the basis of these allegations learned counsel for the appellants has contended that this is a suit for possession based on title which should have been brought within 12 years of the alleged dispossession. Both the lower courts, it is urged, have come to a concurrent finding that the plaintiff's story of alleged dis-possession on 5-9-1962 is not proved. In view of this finding, it had been argued by the learned counsel for the appellant that the plaintiff's suit must be held to be barred under Art. 142 of the Limitation Act, 1908. In the alternative he has submitted that there is no specific article applicable to a suit for partition, and, therefore, Art. 120 which is the residuary article which prescribes a period of six years from the date of accrual of the cause of action must be applied. The contention of the learned counsel is that the cause of action accrued to the plaintiff on 20-9-1950 when he purchased the half share in the property in question from Moolchand. Thus according to the learned counsel the suit would be clearly barred by time under Art. 120 also. On the other hand learned counsel for the respondent has urged that the appropriate article applicable to the present case is Art. 144 of the Limitation Act of 1908. In order to decide, which article is applicable to the present case it would be convenient to reproduce here the three articles which have been pressed into service by the learned counsel for the parties: Description of suit Period of Limitation Time from which period begins to run 120 Suit for which no period of limitation is provided elsewhere in this Schedule. Six years When the right to sue accrues. 142 For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. Twelve years. The date of the dispossession or discontinuance. 144 For possession of immovable property or any interest therein not hereby otherwise specially provided for. Twelve years When the possession of the defendant becomes adverse to the plaintiff. In this connection it may be stated that both the lower courts have found that the plaintiff's story that he got possession of some of the apartments in the house in question from Moolchand at the time of the sale and was dispossessed on 5-9-1962 is not correct. It may also be relevant here to point out that it is the admitted case of both the parties that no partition had taken place between Moolchand on the one hand and Durgadas and Sangidas on the other. Learned counsel for the appellants placed strong reliance on a Bench decision of this Court; Madanlal vs. Durgadutt (1) in support of the proposition that where a suit for possession is based on title and possession, and dispossession or discontinuance of possession is also alleged in express words or by necessary implication Art. 142 and not the residuary Art. 144 would clearly apply and the burden lies on the plaintiff to prove that he was in possession of the property within 12 years of the suit and not upon the defendant to prove adverse possession for 12 years. Learned counsel has also referred to a few cases of other High Courts on this point: Banta Singh vs. Majinder Singh (2), and Official Receiver vs. Govindraj (3 ). In my opinion it is not necessary to examine the proposition of law laid down by these authorities because the present suit is not one for possession based on title and possession and dispossession or discontinuance of possession but is one for partition. In this connection it must be borne in mind that the plaintiff is the purchaser of a coparcener's undivided interest in joint family property, since admittedly no partition had taken place between Moolchand and Durgadas and Sangidas. In Manikayalal Rao vs. Narasimhaswami (4) his Lordship Sarkar J. , speaking for himself and Raghubar Dayal J. , observed as follow: - "now it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he bad purchased. His right to possession would date from the period when a specific allotment was made in his favour. " It would, therefore, appear that the plaintiff Agarchand was not entitled to possession till a partition had been made, and no suit for possession of any specific portion of the property can lie. In fact the plaintiff has prayed for partition of the property, though incidentally he has stated in the plaint that possession of a few apartments had been handed over to him at the time of sale. I am, therefore, of opinion that Article 142 does not apply to the present case. I now advert to Art. 120. It may be observed that Art. 120 applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years, from the date when the right to sue accrues. Learned counsel for the appellants relied on the observation in Shevantibai vs. Janardan (5), that in a suit like the present one the period of limitation under Article 120 commences to run from the date of the sale. This case has no doubt held like that but in Manikayalal Rao vs. Narsimhaswami (4) supra, it was observed that the Bombay case referred to above did not lay down the law correctly. It has been held by their Lordships of the Supreme Court in Rukhmabai vs. Laxminarayan (6), and Mohd. Yunus vs. Syed Unnissa (7) that the right to sue accrues for the purpose of Article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it. Now, in the present case it may be noticed that defendants Durgadass and Sangi Das had challenged the sale of half portion of the house by Moolchand to the plaintiff as fraudulent, without consideration and unauthorised and had filed a suit against the plaintiff for declaration to that effect. However, it was finally held by the District Judge, Bikaner vide Civil Appeal No, 144 of 1959. Durgadas vs. Agarchand, decided on 18-7-1961 (Ex. 4) that the sale of half share in the house by Moolchand in favour of Agar Chand, (Plaintiff in this case) is valid. Thus the right of the purchaser-plaintiff was challenged by the defendants and finally decided by a competent court on 18-7-1961. Hence even if Art. 120 is applied, the limitation would start on 18-7-61 and since the suit has been filed well within six years of this date on 19-9-1962, the suit would be clearly within limitation.
(3.) THE only other article that can be pressed into service is Article 144. In Manikayalal Rao vs. Narasimhaswami (4) supra according to the majority view the application of this Article to a suit brought by the purchaser of a coparcener's undivided interest in a joint family property seems to present great difficulties. This article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of 12 years commencing from the date when possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendants might be in adverse possession of it as against the plaintiff. As observed by their Lordships the right of such purchaser to possession would date from the period when a specific allotment was made in his favour. In the present case admittedly no partition had taken place before the filing of the suit and no allotment had been made in favour of the plaintiff or his predecessor-in-title Mool Chand. It would, therefore, appear that the plaintiff was not entitled to possession till a partition had been made. In the words of their Lordships "that being so it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in Madras Full Bench case; Vyapuri vs. Sonamma (8 ). " Sarkar J. , speaking for himself and Raghubar Dayal J. , felt considerable difficulty in applying Art. 144 to such a case and proceeded on the assumption without deciding it, that even if Art. 144 is applicable the suit was not barred. Ramaswami J. , however, was pleased to observe that such a suit falls within the purview of Art. 144 of the Limitation Act and the fact that the alienee has purchased an undivided interest of joint family property is not inconsistent with the conception of adverse possession of that interest. In this view of the matter it was held by his Lordship that adverse possession begins to run from the date of the purchase of the undivided share. Thus in the present case also, even proceeding on the assumption that Art. 144 is applicable it seems to me that the suit is not barred because the date of the sale in the plaintiff's favour is 29-9-1950 and the suit has been brought within 12 years i. e. on 19 9-1962. Looked at from any angle the suit is not barred by limitation. This appeal is, therefore, dismissed, but in the circumstances of the case, I leave the parties to bear their own costs. Learned counsel for the appellant prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed. .;