Umesh Chandra Bhattacharjee vs Jagadis Chandra Bhattacharjee and others

Rampini, J.—This is a suit for the establishment of the Plaintiff''s right to, and to recover possession of, a certain share in a Thakurghar brought, as I understand the case, on the allegations that this property is joint family property, and that the Plaintiff has been excluded from it from Bhadra 1290. Among other defences raised, it was pleaded that the property was the separately acquired property of the Defendant No. 1 alone. The Court of first instance found in favour of the Plaintiff. He expressly held that "The Thakurghar and the land covered by it, like other disputed properties, are the ijmali property of the whole family, and not the special inheritance of the Defendant No. 1, or the senior branch " On appeal to the lower Appellate Court, the Subordinate Judge reversed the Munsif''s decision, and held the suit to be barred by limitation, inasmuch as the Plaintiff had not established his possession in 1288 and 1289, and so had not proved his possession within 12 years of the suit.

The Plaintiff now contends that the Subordinate Judge is wrong in holding that the onus lay on him to prove his possession within 12 years. His pleader urges that the article of the Limitation Act applicable is not 142, as supposed by the Subordinate Judge; but the property being joint family property, the article applicable is article 127, under which the onus is on the Defendants to show that the Plaintiff''s exclusion from the property became known to him at an earlier date than that admitted by him, in other words more than 12 years before the institution of the suit. He cites an unreported decision of this Court in Special Appeal No. 1023 of 1888, referred to in Mitra''s Law of Limitation, page 786, 3rd Edition, as an authority for this doctrine.

I think this contention of the pleader for the Appellant is correct. The property has been found by the Munsif to be joint family property. This finding has not been displaced by the Subordinate Judge; that being so, the article applicable is article 127, and not article 142, and the onus is on the Defendant to show that the Plaintiff was to his knowledge excluded from enjoyment of the disputed property for more than 12 years before the institution of the suit. The Plaintiff does not admit this. He pleads that he was excluded in 1290, i.e., within 10 years of the institution of the suit.

It is true the parties in the lower Courts both shaped their cases as if article 142 were applicable. This is immaterial. The property having been found to be joint family property, the article applicable is 127.

The Respondent''s pleader argues that the Munsif did not intend to find the property to be joint family property, but merely joint property. But in my opinion, looking at the pleadings of the parties and the language used by the Munsif, this contention is. clearly wrong. I therefore set aside the decree of the Subordinate Judge and remand the case to him for a fresh decision, If he finds the property to be joint family property, he should apply the provisions of article 127 to the case. If he finds that it is not joint family property, he will apply the provisions of any other article that may appear to him to be applicable.