Lala Jagdamb Lal and Others vs Lala Biku Lal and Others

Chapman, J.—This appeal arises out of a suit for partition. The plaintiffs'' case appears to have been that they and the defendants were members of a Hindu family to whom some fifty years ago or more a grant of 127 bighas of land had been made. Subsequently to that grant there had been a partition between the plaintiffs'' branch and the defendants'' branch of the family of 45 bighas out of the 127 bighas. The suit prayed for a partition of the remaining 82 bighas. The original Court held against the plaintiffs'' case and held that the plaintiffs had no joint title in respect of these 82 bighas of any kind.

In appeal the District Judge Mr. Monahan held that the plaintiffs'' case had been made out; that the grant of the entire 127 bighas was originally joint; that there had been a partial partition, and that the plaintiffs still have a joint title. There was an appeal to the Calcutta High Court. The Calcutta High Court remanded the case for a fresh disposal. They did so upon the ground that the learned District Judge had nowhere in his judgment referred to the question of limitation. The learned Judges, however, did not in their judgment set aside the judgment of Mr. Monahan, and in disposing of the cross-appeal they say that the cross-appeal was concluded by the finding of fact arrived at by Mr. Monahan.

Upon the case coming on before Mr. Monahan a successor Mr. Rowland, it was contended before Mr. Rowland that the entire case had been re-opened and that the appellants-defendants were entitled to re-open the question of title to the land. Mr. Rowland held that he was bound by the findings of his predecessor upon that point and that it was only open to him to go into the question of limitation. He held that for the purposes of establishing limitation it was necessary to prove that there had at some time been a definite ouster of the plaintiffs. "There being no evidence to that effect the plea of limitation must fail. I accordingly dismiss this appeal."

The defendants now again appeal to this Court. After some discussion it was conceded that it was in any event open to, the District Judge to go into the question whether there was an original grant of the entire 127 bighas to this family or not. It was contended before us that from the fact of there having been a partial partition of this 127 bighas it should have been presumed that there was an entire partition of the entire 127 bighas. it appears to me that if there be any doctrine of presumption of that kind it cannot refer to a specific area of land; it is only applicable to a case of a Hindu family the properties of which are not ascertained. If then one side can show that under some sort of partition some of the members of the family held separate properties, there probably would be some presumption that the entire family properties had been partitioned; but where there is specific evidence that the whole area of 127 bighas had been partially partitioned, that evidence is in itself sufficient to dispose of any presumption that there was an entire partition of the whole. In any case it seems ''to me clear from the judgment of the High Court in appeal that it was not open to the learned District Judge to interfere with the finding of his predecessor upon the question whether there was a partial partition or not, for if there had been a complete partition it would be quite unnecessary to consider any question of limitation at all; the suit would have failed if there had already been a complete partition. The remand of the question of limitation by the High Court assumes that there is a right to partition, unless that right can be shown to have been defeated by the law of limitation.

It is then contended in appeal that the principle under which co-owners can only be defeated by the law of limitation by evidence that one co-owner has been in adverse possession of the property does not apply to a case in which there has been a partial partition. No authority for this contention has been cited. The authority which was mentioned is an authority which is against the appellants, namely, the case of Vaidyanath Aiyar v. Aiyasamy Aiyar 1 Ind. Cas. 408 : 32 M. 191 : 5 M.L.T. 49 : 19 M.L.J 94 where at page 197 it is said: �Where a member of a joint family is in pos session of joint family properties and a partial partition takes place leaving him, however, in possession of certain properties not divided between them, his possession will still continue to be the possession of the other members of the family though they may have been divided, till some event happens which renders his possession exclusive or hostile to the others."

All the contentions made on behalf of the appellants fail. It has not been suggested that upon the facts of the case the learned District Judge fell into error in saying that there was nothing to support the plea of ouster or adverse possession. The result is that this appeal fails and is dismiseed with costs.

Atkinson, J.

I agree.