1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.374 OF 2009 1. KASTURABAI WD/O. ONKAR MAHALE, 2. VITTHAL ONKAR MAHALE, 3. SARASWATI DHONDU PATIL, 4. BHARGIRATHIBAI ONKAR MAHALE, 5. PARVATI BHIMRAO PATIL, 6. PANCHFULABAI VISHWANATH PATIL, 7. YASHODABAI BASNT PATIL, 8. DEOKABAI RAMDAS PATIL, R/O. DNYANGAPUR, & PIMPALKHUTA, TAH. NANDURA, DISTT. BULDANA. ..APPELLANTS. VERSUS 1. VINAYAK SAOJI MAHALE, 2. BHIMRAO PUNDLIK MAHALE, 3. ATMARAM PRALHAD MAHALE, 4. KASHINATH VISHWANATH MAHALE, 5. SAU. GOKARNABAI SONAJI NITONE, 6. SMT. KASABAI SHRIPAT WAKODE, 7. ONKAR MAHADEO PAITHANKAR, ALL R/O. DNYANGANGAPUR, TAH. KHAMGAON, DISTT. BULDANA. .. RESPONDENT/S. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri A.S.Mardikar, Advocate for Appellants. Shri A.V.Bhide, Advocate for Respondents. CORAM : R.K.DESHPANDE, J. DATED : FEBRUARY 10, 2010. 1. This appeal is preferred by the original defendants challenging the concurrent findings of fact recorded by the Courts below. The respondents herein are the original plaintiffs, whereas the appellants are the original defendants. 2 2. The plaintiffs filed Regular Civil Suit No. 7 of 1997 for declaration, injunction and for general partition. The plaintiffs alleged that they have purchased the suit property from defendant No.2 between 1983 to 1987. This alienation was the subject matter of challenge in Regular Civil Suit No.71 of 1985 filed by defendant No.1. The suit was decreed. Regular Civil Appeal Nos. 20 of 1992 and 24 of 1992 were preferred by the parties. So far as alienations in favour of plaintiffs herein were concerned, the same were confirmed. The appellate Court by its judgment and order dated 28.11.1996 directed the plaintiffs herein to file separate suit for partition and possession of the property. Accordingly, the plaintiffs had filed Regular Civil Suit No.7 of 1997. 3. Before the trial Court an objection was raised that the suit is not within the period of limitation. The trial Court answered the said issue in the affirmative. It was held that the suit was filed in compliance with the order passed by the learned Additional District Judge on 28.11.1996. The suit was filed on 04.01.1997 and the same was, therefore, within limitation. 4. In an appeal, preferred by the appellants/ defendants, again this point was raised and reliance was placed on the provisions of Articles 113 and 65 of the Limitation Act. The appellate Court rejected the contention and it was held that the suit filed by the plaintiffs was within limitation as the right to file suit accrue in favour of the plaintiffs in view of the directions given in Regular Civil Appeals No.20 of 1992 and 24 of 1992, decided on 28.11.1996. 5. Shri Mardikar, learned counsel appearing for the 3 appellants, has urged that substantial question of law arises in the instant second appeal and placed his reliance upon the provisions of Articles 113 and 65 of the Limitation Act. He urged that the suit was not filed within a period of twelve years as required by Article 65 and the right to sue accrue to the plaintiffs long back when they purchased the property in the year 1983. Hence, the suit was barred by limitation. 6. Article 113 of the Limitation Act is in respect of the suits for which there is no prescribed period of limitation provided elsewhere in the Schedule. The period of limitation prescribed, is of three years and the time from which the period beings to run, is the time when the right to sue accrues. In the instant case, the point urged is no longer res integra in view of the decision of the Apex Court in Manikayala Rao Vs. Narasimhaswami, reported in 1966 SC 470. Relevant paragraphs No.5 and 7 of the said judgment are reproduced below : “5. As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. 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 had purchased. 4 His right to possession “would date from the period when a specific allotment was made in his favour” : Sidheshwar Mukherjee V. Bhubneshwar Parasad Narain Singh, 1954 SCR 177 at p. 188 : (AIR 1953 SC 487 at p. 491). It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. 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 the Madras Full Bench case of Vyapuri V. Sonamma Boi Ammani, ILR 39 Mad 811; (AIR 1916 Mad 990 (2) FB). 6. ..... 7. Having expressed our difficulties on the matter let us proceed on the assumption without deciding it that Art. 144 is applicable. Even so, it seems to us that the suit is not barred. It is not in dispute that in order that the suit may be barred under the article the defendant must have been in uninterrupted possession for twelve years before the date of the suit. Now, in the present case that was not so. By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. Time has, therefore, to commence to run from that date and so considered, the suit having been brought within twelve years of that date, it was not barred under that article. That would follow from the case of Sri Radha Krishna Chanderji V. Ram Bahadur, AIR 1917 PC 197 (2), where it was held that delivery of formal possession also interrupted the continuity of adverse possession.” 7. Reliance placed upon the provisions of Article 65 of the Limitation Act, 1963 is also of no help to the appellants for the reason that it prescribes a period of limitation of 12 5 years seeking possession of the immovable property or any interest therein based upon title. The time from which the period begins to run in such a case is when the possession of the defendant becomes adverse to the plaintiff. Here, in the instant case, the question of adverse possession is not at all involved. Hence, the provisions of Article 65 of the Limitation Act is not attracted. 8. In view of the aforesaid position, it is apparent that the learned Additional District Judge by his judgment and order dated 28.11.1996 passed in Regular Civil Appeals No.20 of 1992 and 24 of 1992 directed the plaintiffs, who are purchasers of the suit property from defendant No.1, to file suit for partition. The suit for partition was filed on 04.01.1997 and the same was therefore, within limitation. 9. In view of above, no substantial question of law arises in the second appeal, the same is, therefore, dismissed. JUDGE RR.