VISHNU GOPAL MAHANT Vs. VISHVANATH NARAYAN

JUDGEMENT

(1.) THIS is a second appeal from the judgment of the Civil Judge (Senior Division) with A. P. , Belgaum. The material facts are these: The plaintiff alleged that one Satteppa and defendant No.1 were members of Shri Mahadeo Cooperative Credit Society of Yeksamba. Satteppa took a loan from the Society for which defendant No.1 stood surety. As the debt was not repaid, the society obtained an award decree against Satteppa and defendant No.1. In enforcement of that decree certain lands of defendant No.1 were attached and sold through the revenue authorities. The area so sold was one acre and twenty gunthas. The boundaries of that area are set out in the certificate for sale issued to the plaintiff, who purchased the same at the auction with the necessary permission. The plaintiff got symbolical possession but not actual possession, which remained with the defendants. The present suit was filed to obtain physical possession of the property from the defendants. Defendant No.1 filed a written statement in which he contended that the sale was illegal, that the claim for possession was barred under Article 120 of the Indian Limitation Act, 1908, and that until another plot of land which was purchased was brought into hotchpot, no decree should be passed in favour of the plaintiff. Defendant No.2 in his written statement contended that he was not bound by the sale, that he had separated from defendant No.1 many years ago and that the debt was avyawaharika and not binding upon him. It appears that defendant No.2's contention that the debt was avyawaharika was not pressed and no issue was raised on that point. The contention of defendant No.2 that there was a partition between him and defendant No.1 was negatived by the trial Court. The trial Court passed a decree in favour of the plaintiff for possession, mesne profits and costs. On appeal the only point argued was of limitation. Relying on Bai Shewantibai v. Janardhan Warick: Janardhan Warick v. Bai Shewantibai (1939) 41 Bom. L. R. 631, the lower appellate Court held that the claim was time-barred and dismissed the suit. The plaintiff has filed an appeal against that decree.

(2.) THIS being a second appeal we are only concerned with the question of limitation, on facts held to be proved by the lower Courts. As in the lower appellate Court only the point of limitation was argued, it must be accepted that the respondents had accepted all the findings of fact of the trial Court. On these findings it is clear that the suit was filed by the society against Satteppa and defendant No.1 to recover a certain debt due to the society. A decree was passed, and in enforcement of that decree a particular plot of land of defendant No.1 was sold and purchased by the plaintiff. In the sale certificate the exact boundaries are specified. The present suit was by the auction-purchaser to obtain from the defendants possession. The contentions that defendant No, 1 and defendant No.2 had been separated before the sale and that the debt was aviyawaharika having failed, the position is that an outside creditor had obtained a decree against defendant No.1, who was the manager of the joint family consisting of himself and his minor son. In enforcement of that decree the joint family property was sold and the auction purchaser had filed this suit to recover possession. It is clear that on these facts Article 120 does not apply to such a suit and Article 144 will be applicable. The lower appellate Court relied on Shewantibai v. Janardhan, but it has failed to notice the material distinction in the case. In that litigation there was a voluntary sale by a member of a joint family of his undivided interest in the joint family estate. The purchaser filed a suit to enforce his right. It is clear that in such a case it may be argued that as the vendor had no right to state that he had a particular share in a particular asset of the joint family, the purchaser acquired no higher right and therefore different considerations as to the law of limitation may apply. The present suit, as I have pointed out, is not to enforce a private sale of an undivided interest of a co-parcener in a specific joint family asset, but is a suit by an auction-purchaser of a particular joint family property described with boundaries in his sale certificate sold in enforcement of a decree obtained by a creditor against inter alia the manager of the family. We, therefore, think that Shewantibai v. Janardhan has no application to the facts found here. The decree of the lower appellate Court is set aside and the decree of the trial Court restored with costs throughout. .