Case: Jagdev Daulata Mahadik &amp; Others Vs. Govindrao Balwantrao Through Lrs. &amp; Others

others, as the special leave petition was dismissed because it was filed by a dead person, the joint decree against him had also become absolute. As that decree is a joint decree, any relief that would be given in the appeal would be inconsistent with the decree which had already become final and consequently both the appeals should be dismissed.8. The learned Advocate for the appellants, however, takes support from Order, 41, Rule 4 of the Code of Civil Procedure and on that analogy he stated that if any one of the joint decree holders can file an appeal, and even though other joint holders are not made parties, the Court can reverse or vary the decree in favour of all the appellants or respondents, as the case may be. No doubt the answer to that question given by the respondents Advocate is that while that may be so, where an appeal has in fact been filed and it was dismissed there would be a decree against Raoji Satwaji Mahadik, and, consequently no decree can be given in these appeals which would be inconsistent with that decree.9. A large number of cases had been cited, but we do not think it necessary to go into that question in these appeals. Even on the assumption that there is no validity in the preliminary objection, on which we do not propose to express out opinion, on merits these appeals have to be dismissed.10. The learned Advocate for the appellants had drawn our attention to the pleas raised by the defendants in the two suits : firstly, that the plaintiffs suit was barred by res jidicata; secondly, by estoppel; thirdly by limitation and fourthly by virtue of Section 41 of the Transfer of Property Act. In so far as the first and second pleas are concerned, namely, rea judicata and estoppel, those pleas were given up in the High Court. In so far as the fourth plea based on Section 41 of the Transfer of Property Act is concerned, it was pressed and negatived by the Appellate Court, and the third plea of limitation was held against the defendants. The learned Advocate for the appellants has stated at the Bar that he does not wish to press the plea based on Section 41 of the Transfer of Property Act. He has, therefore, confined his arguments to the third plea only, namely, that the suit was barred by limitation as it was not filed within 12 years from the date of dispossession. In our view, this contention has also no substance. We may point out that the Trial Court held that Govindrao and Bali Mahadu Jadhav had title to the respective properties by reason of Narsingarao having purchased Narayanraos share in auction sale and Govindrao in his turn having purchased it on July 1, 1925 from Narasingarao that half share of Narayanrao. It is also clear that a final decree in the partition suit was passed in 1941 and later in 1943 Govindrao share was separated and he was given possession. Narayanraos share was shown as C Schedule properties. From the date Govindrao was given possession of his separate property he was also entitled to have separate possession of half share of Narayanrao. From that date, at any rate, he had title to Narayanraos properties. Till then Govindraos possession was that of joint owner with Narayanrao, as such no question of any bar of limitation would arise during that period. As we have stated stated while narrating the facts, the suits were filed in 1952 and if Govindrao was dispossessed after his joint possession was separated and he was given separate possession in respect of specific property the suits would be well within time. The learned Judge of the High Court, Palekar, J., as he then was dealt with the contention urged on behalf of the appellant/respondents before him regarding limitation. Nagativing the pleas urged on their behalf he summed up the position relating to Govindraos possession thus :"He got his own ancestral half share in the property between 1941 and 1943, and that continued in his possession, admittedly, after that date. But in respect of the other share of Narayanrao, which he had purchased in 1925, he continued in possession of the same till 1941, or thereafter. But, in the meantime, between 1941 and 1947, acts of dispossession with regard to that possession were committed by defendant No. 1 and the other defendants. In other words, his dispossession, if at all, has taken place after 1941, in which case his suit was clearly within time.Apart from the evidence which has been led to show the possession of either side, the admitted facts themselves go to show that the plaintiffs suit could not be barred by limitation. The plaintiff Govindrao and Narayanrao were in joint possession of the properties, and Govindraos half share in the properties was never denied. There was no case also of his exclusion at any time. When he filed Civil Suit No. 313 of 1923 he filed it on the basis that he was in joint possession, and the only reason why he had to bring the suit was that his brother Narayanrao was not willing to a partition. In fact, it appears, the suit was hastened by the fact that Narayanraos half share in the property had been brought to sale in court auction by one of his creditors. After the suit was filed, his joint possession was continued, and the very fact that in 1941, there was a partition by metes and bounds in which Govindrao was allotted the "B properties in the suit would postulate that he was in joint possession of every unit of the family property in enjoyment of his half share in the property. And if he was in possession till, 1941, I do not see how he would be barred by limitation. No serious challenge has been directed against the view expressed the learned Judge with which we are also in entire agreement.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]10. The learned Advocate for the appellants had drawn our attention to the pleas raised by the defendants in the two suits : firstly, that the plaintiffs suit was barred by res jidicata; secondly, by estoppel; thirdly by limitation and fourthly by virtue of Section 41 of the Transfer of Property Act. In so far as the first and second pleas are concerned, namely, rea judicata and estoppel, those pleas were given up in the High Court. In so far as the fourth plea based on Section 41 of the Transfer of Property Act is concerned, it was pressed and negatived by the Appellate Court, and the third plea of limitation was held against the defendants. The learned Advocate for the appellants has stated at the Bar that he does not wish to press the plea based on Section 41 of the Transfer of Property Act. He has, therefore, confined his arguments to the third plea only, namely, that the suit was barred by limitation as it was not filed within 12 years from the date of dispossession. In our view, this contention has also no substance. We may point out that the Trial Court held that Govindrao and Bali Mahadu Jadhav had title to the respective properties by reason of Narsingarao having purchased Narayanraos share in auction sale and Govindrao in his turn having purchased it on July 1, 1925 from Narasingarao that half share of Narayanrao. It is also clear that a final decree in the partition suit was passed in 1941 and later in 1943 Govindrao share was separated and he was given possession. Narayanraos share was shown as C Schedule properties. From the date Govindrao was given possession of his separate property he was also entitled to have separate possession of half share of Narayanrao. From that date, at any rate, he had title to Narayanraos properties. Till then Govindraos possession was that of joint owner with Narayanrao, as such no question of any bar of limitation would arise during that period. As we have stated stated while narrating the facts, the suits were filed in 1952 and if Govindrao was dispossessed after his joint possession was separated and he was given separate possession in respect of specific property the suits would be well within time. The learned Judge of the High Court, Palekar, J., as he then was dealt with the contention urged on behalf of the appellant/respondents before him regarding limitation. Nagativing the pleas urged on their behalf he summed up the position relating to Govindraos possession thus :"He got his own ancestral half share in the property between 1941 and 1943, and that continued in his possession, admittedly, after that date. But in respect of the other share of Narayanrao, which he had purchased in 1925, he continued in possession of the same till 1941, or thereafter. But, in the meantime, between 1941 and 1947, acts of dispossession with regard to that possession were committed by defendant No. 1 and the other defendants. In other words, his dispossession, if at all, has taken place after 1941, in which case his suit was clearly within time.Apart from the evidence which has been led to show the possession of either side, the admitted facts themselves go to show that the plaintiffs suit could not be barred by limitation. The plaintiff Govindrao and Narayanrao were in joint possession of the properties, and Govindraos half share in the properties was never denied. There was no case also of his exclusion at any time. When he filed Civil Suit No. 313 of 1923 he filed it on the basis that he was in joint possession, and the only reason why he had to bring the suit was that his brother Narayanrao was not willing to a partition. In fact, it appears, the suit was hastened by the fact that Narayanraos half share in the property had been brought to sale in court auction by one of his creditors. After the suit was filed, his joint possession was continued, and the very fact that in 1941, there was a partition by metes and bounds in which Govindrao was allotted the "B properties in the suit would postulate that he was in joint possession of every unit of the family property in enjoyment of his half share in the property. And if he was in possession till, 1941, I do not see how he would be barred by limitation. No serious challenge has been directed against the view expressed the learned Judge with which we are also in entire agreement.