Tulshi Pershad vs Raja Misser and Others

The first point taken in this appeal is that the lower Appellate Courts wrongly declined to allow the plaintiff, who is the appellant before us, and who was the respondent in the Court below, to urge objections to the decree of the first Court u/s 561 of the Code of Civil Procedure, on the ground that he had not fulfilled the condition of giving notice of such objections within the period allowed. Section 561 permits a respondent to take any objection to the decree which he could have taken by way of appeal, provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal. The appeal in the lower Appellate Court was originally fixed to be heard on the 14th December. The notice of objection by the respondent was filed only on the 10th of December. It is shown by his pleader on second appeal that the notice of appeal in the lower Court was received by him on the 9th December, that is, five days before the date fixed for hearing. It seems unreasonable in such a case that the strict letter of the law as laid down in Section 561 should be observed if "the date fixed for the hearing of the appeal" means the date originally fixed and does not mean the date when the appeal really comes on for hearing. But the rulings of this Court admittedly are to the effect that the first day is the one indicated by the section. The Bombay High Court has taken a different view in Rangildas v. Bai Girja 8 B. 559. I should consider myself bound by the decisions of this Court unless I was strongly of opinion that the Bombay decision was more correct and the circumstances of the case required a reference of the matter to a Full Bench. But, as pointed out by the Vakil for the respondent before us, Baboo Mohesh Chunder Chowdhry, it does not so much matter in this case that the Court did not formally admit the objections, because the Subordinate Judge states that the pleader for the respondent before him in his argument relied upon these objections; and the Court itself expressed an opinion upon the points raised. That opinion was unfavourable to the respondent in the lower Court. It is therefore unnecessary for us to say any more on this point.

The other objection taken to the lower Appellate Court''s decree is that the Subordinate Judge has gone wrong upon the question of limitation in finding that the plaintiff has not shown that he has been in possession in any way within twelve years before he brought this suit. The plaintiff in the first instance based his case upon an alleged partition of the property belonging to the family, which had originally been joint. The lower Appellate Court found that partition not proved. The appellant''s Vakil therefore contends that, if the partition was not proved, the family must be held to be joint and the possession of one member could not be adverse to another. The plaintiff therefore, the learned Vakil contends, must be held to have had possession through that other member. Here again, however, there appears to be a fallacy, as pointed out by Baboo Mohesh Chunder Chowdhry. The family is admittedly not a joint family now, and had not been joint for many years before the suit was brought. The plaintiff would still have to remove the bar of limitation before his suit could be entertained. He would have to show SOME sort of possession by himself, some enjoyment of the profits of the property. The Court below found that he did not do so; therefore his suit failed in both respects. The partition which he alleged was not made out, and he has not proved possession within twelve years before the institution of this suit.

The appeal is dismissed with costs.