Giri Appaya and Others vs Giri Kristamma and Others

The plaintiffs alleged that Latchiah, their grandfather, died eight years before their suit. This was found by the District Munsif to be false, and his

finding was not contested in the District Court This false allegation, we think, may have led the District Munsif to make the issue of limitation

depend only on the question of the length of time during which the 1st defendant held possession of the property. But taking the District Judge to

be right in holding that Latchiah''s sons took his property as tenants-in-common, the possession of the 1st defendant is referable to his title as one

of the tenants-in-common and is not of itself proof that the plaintiff was excluded or that the 1st defendant''s possession was adverse to the

plaintiffs, and we have been shown no other facts : and no other facts are referred to by the District Judge, from which it could be found that the

possession was adverse. In these circumstances we think it is desirable to allow further evidence on the question of the nature of the first

defendant''s possession and we will ask the District Judge for a fresh finding on the second issue having regard to these observations, taking such

further evidence as may be adduced.

The finding should be submitted in two months : seven days will be allowed for filing objections.

In compliance with the order contained in the above judgment the District Judge of Vizagapatam submitted the following

FINDING.--I am asked to submit a fresh finding on the 2nd issue, viz. Is the suit barred by limitation? in the light of the observations contained in

the judgment of the High Court, after recording such further evidence as the parties may adduce. The defendants have examined one witness, viz.,

the 2nd defendant, and the plaintiffs have examined none. The evidence of the 2nd defendant is that on the death of Latchiah, 1st defendant got

possession of the land and that since then defendants Nos. 1-4 have paid the kist due thereon to the Bobbili Maharaja, that the plaintiffs'' land is

close to the suit land and that defendants Nos. .1-4 never gave plaintiffs a share in the produce of the suit land.

The evidence of the 2nd defendant really adds nothing to the evidence on record. All it amounts to is that defendants Nos. 1-4 have been in

exclusive possession of the suit land since the death of Latchiah. The High Court had already held in the judgment that such possession is not of

itself proof that plaintiffs were excluded or that the possession of defendants Nos. 1-4 was adverse to plaintiffs in the circumstances of the case. I

must, therefore, hold that the possession of the defendants Nos. 1-4 was not adverse to plaintiffs and consequently that the suit is not barred by

limitation.

This second appeal coming on for hearing this day after the return of the finding of the lower -Appellate Court on the issue referred to it for trial

the Court delivered the following

JUDGMENT

We accept the finding and reverse the decrees of the Courts below. We make a preliminary decree for partition of the plaintiffs one-third share

in the suit lands as prayed in the plaint and direct the District Munsif to effect the partition and make such inquiry as may be necessary to determine

the mesne profits due to the plaintiffs from the date of the plaint to the date of delivery or for three years from this date, and to make the final

decree.

The defendants must pay the plaintiffs'' costs in all Courts.