Case Note & Summary
The appellant (original plaintiff) and respondent (defendant) are brothers who jointly purchased suit property on 02.01.1978. The plaintiff claimed that on 21.10.2006 he sought partition, which was refused, leading to the suit. The defendant pleaded an oral partition on 02.10.1982 giving the property to him, and that the plaintiff had earlier filed a partition suit which was withdrawn on 21.04.1987 with liberty to file fresh suit. The trial court initially held a preliminary issue that the suit was within limitation, but after trial found it barred by limitation and that the defendant acquired title by prescription. The first appellate court affirmed. In second appeal, the High Court framed substantial questions of law on limitation and prescription. The appellant argued that the preliminary issue was final and that cause of action arose on demand. The High Court held that the trial court could reconsider the issue after evidence, and that the suit was clearly barred by limitation as the present suit was filed more than 19 years after withdrawal of the earlier suit. It also upheld the finding of title by prescription. The appeal was dismissed.
Headnote
A) Limitation Act, 1963 - Article 65 - Partition Suit - Bar of Limitation - Suit for partition filed 19 years after withdrawal of earlier suit with liberty to file fresh suit is barred by limitation - The cause of action for partition arises on demand, but where there is an earlier suit withdrawn, the period of limitation runs from the date of withdrawal - Held that the suit was barred by limitation (Paras 2, 5, 6). B) Limitation Act, 1963 - Article 65 - Adverse Possession - Title by Prescription - Co-owner remaining in exclusive and open possession for more than 12 years can acquire title by prescription - Held that the defendant acquired title by prescription (Paras 5, 6).
Issue of Consideration
Whether the suit for partition was barred by limitation and whether the defendant acquired title by prescription.
Final Decision
Second appeal dismissed. The suit for partition was barred by limitation and the defendant had acquired title by prescription.
Law Points
- Limitation for partition suit
- adverse possession
- title by prescription
- finality of preliminary issue on limitation
