P L D 1971 Dacca 15 (PLP)

Md. Bazlur Rahman v. All Pramanik 19 D L R 765 ; 4 D L R 89 ; B:rla Prawd v. Ra,‑hey Shiam and another A I R 1934 All. 25 ; Roop Chand v. Sardar Khan and others A I R 1928 Lah. 359 and Makram Ali Molla and others v. Abdul Hamid Molla and others A I R 1927 Cal. 880 rel. Municipal Corporation of Pakistan v. Baradio Jumoo Mughal AIR 1946 Sind20 ; 50 C W N 801 and I L R 31 Mad. 86 held not applicable. Abdus Salam with A. Baset Mazumder for Appellant. R. K. Bhattacherjee for Respondent No.

1. Dates of hearing : 25th and 26th February 1970. The plaintiff is the appellant in this Court. He instituted a suit for declaration of title as well as for partition on the assertion that the property in suit belonged to defendant No. 1 and his five brothers and one Anukul Chandra Chakrabarty in equal shares. Defendant No. 1 borrowed some money along with Jogesh as surety. The plaintiff sued defendant No. 1 and the surety, and obtained a money decree in the Money Suit No. 55 of 1933 and put the decree into execution which is Money Execution Case No. 92 of 1945 and in pursuance thereof purchased the property on 16‑7‑1946 and took delivery of possession through Court on 4‑11‑1947. Anukul Chandra Chakrabarty died leaving his brothers as heirs. Since defendants are not allowing the plaintiff to possess the disputed share of defendant No. 1 purchased by the plaintiff, it has brought the suit. After filing of the plaint the plaintiff added the heirs of defendants 4 and 5 on 20‑1‑1960 on the allegation that defendant No. 4 died on 29‑10‑59 and defendant No. 5 died on 20‑11‑

59. Subsequently defendant No. 6 was also added in the suit. The suit was contested by defendant No. 6 on the ground of limitation, estoppel, waiver and acquiescence and also on the ground that defendants 4 and 5 died long before the suit and as such the suit was not maintainable. It was also the case of defendant that defendant No. 6 is in possession of the share of defendant No. 1 by auction‑purchase on 19‑4‑1948 in Money Execution Case No. 124 of 1935 in execution of the decree in Money Suit No. 62 of 1935. The parties went on trial and after consideration of the evidence the trial Court found the suit to be maintainable, not barred by limitation and hence he decreed the suit in favour of the plaintiff for partition to the extent of 1 /6th share. On appeal the learned subordinate Judge, First Court, Comilla, partly affirmed the finding of the learned Munsif but found the suit to be not maintainable and hence dismissed the suit. Against that the present appeal has been filed. Mr. Abdus Salam, the learned Advocate appearing on behalf of the plaintiff‑appellant, asserts that the Court of Appeal below, upon a misconception as to the scope of the suit and the principles of limitation and addition of parties involved in the suit, has erroneously come to a finding that the suit is not maintainable. Before dealing with this matter, it must be stated that there is a concurrent finding of fact of the Courts below regarding the fact that by sale certificate Exh. 2 plaintiff auction‑purchased 1/6th share of the defendant No. 1 in the disputed property on 16‑7‑

46. The copy of the peon's return Exh. 3 shows that the plaintiff took symbolical possession through Court on 4‑11‑

47. The suit has been filed on 4‑11‑59, that is, within 12 years from the date of possession taken through Court. The sale certificate Exh. A shows that defendant No. 6 auction‑purchased 1/6th shire of defendant No. 1 in the disputed property on 19‑4‑

48. Defen dant No. 6 was added as party in the suit on 10‑2‑60, i.e. within 12 years from that date and as such it has been found that the suit is not barred by limitation as against defendant No. 1 and defendant No.

6. It has also been concurrently found that as the plaintiff also took symbolical possession through Court on 4‑11‑47 and the auction‑purchase by defendant No. 6 took place on 19‑4‑48, after the auction‑purchase and taking of de livery of possession by the plaintiff‑defendant No. 6 did not acquire any interest of defendant No. 1 in the disputed property. There is also a concurrent finding that defendant, who is contest ing, has not taken any plea of ouster and there is no evidence to show that the claim has been barred by adverse possession and that the suit was maintainable as against the defendants Nos. 1 and

6. Now comes the disputed question of maintainability of the suit as found by the Court of appeal below. It must be stated that the Court of appeal below has found that defendant No. 5 at least died before the institution of the suit. The learned Munsif has, of course, found that both defendant No. 4 and defendant No. 5 died before the institution of the suit, but the fact remains that the heirs of both the deceased‑defendants were brought on record by addition of parties as hag been found by the trial Court. Apparently they were added more than 12 years after taking of symbolical possession by the plaintiff. The question therefore arises whether in such circumstances it can be said that the suit as against them was barred by limitation and as such the suit as a whole was barred by limitation. The trial Court has held that with regard to the heirs of the deceased‑defendants 4 and 5, it is a case of partition and they being co‑sharers the question of limitation does not arise and on that point he found that the suit as against them is not barred by limitation whereas the Court of appeal below has found that the plaintiff has been kept out of possession jointly and defendants are joint tort‑feasors and therefore if the suit is a nullity against one defendant, it must be so treated as against all the defendants. It may be stated here that this finding of the Court of appeal below is wrong, The suit is of a composite nature it comes within section 44 of the Transfer of Property Act which provides that if one of two or more co‑owners of immovable property transfers his share of such property, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, is entitled to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, and in the case of dwelling house belonging to an undivided family and if transferee is not a member of that family he is not entitled to joint possession and he can claim only parti tion of the said property. The suit therefore is to be treated as a suit for declaration of title and recovery of possession as against defendants Nos. 1 and

6. As has been found before there is a concurrent finding of fact arrived at by both the Courts below rightly that the suit as against them is not barred by limitation. That being the position the suit thereafter partakes of a character A of partition suit as against other co‑sharers whose interests are not transferred and the plaintiff' who steps into the shoes of defendant No. 1 as a co‑sharer can maintain a suit for partition. Mr. Salam has cited 19 D L R 765 where a Division Bench of this Court has found that in a partition suit the cause of action is recurring and the party should not be thrown to institute a new suit but the heirs of a deceased person can be added under Order 1, rule 10 of the Code of Civil Procedure. He has also cited 4 D L R 89 where this Court have gone a step forward as to find that the Court even in the absence of an appli cation can suo motu add parties. Similar are the decisions reported in A I R 1934 All. 25, A I R 1928 Lah. 359 and A I R 1927 Cal.

880. It must be stated that the principles of addition of party are subject to the law of limitation. But as in the suit of partition the cause of action is recurring and as it has been concurrently found by the Courts below there is no question of adverse possession, therefore the suit for partition was maintain able against other co‑sharers. The case referred to by the learned Subordinate Judge A I R 1946 Sind 20, is a case where the sole defendant died and that was not a suit for partition. As such the principle is not applicable. Similarly the case reported in 50 C W N 801 was a suit where one of the tenants died and there the finding was that the substitution was not made bona fide. Similar is the decision in I L R 31 Mad. 86 which was a suit on promissory note. After consideration of the above decision it can be said that in case of necessary parties if there is a suit brought against a dead person and if addition of their heirs is sought to be made it is first to be seen before allowing the application for addition of party whether the suit itself will be barred by limitation or not against these added heirs. If they are not barred by limitation the decisions as I have cited and as I read them permit the addition of parties. It is only in cases when the parties are sought to be added beyond the period e of limitation the question arises as to whether the heirs sought to be added were either against parties who are necessary parties to the suit. If they are necessary parties to the suit and if cause of action was not surviving then they could not be added as parties and the suit as a whole will be treated as not maintainable. But in the case of partition where the cause of action is recurring unless in case of an ouster or a clearly established adverse posses sion, they can always be added as parties. In that view of the matter I do not find that the learned Subordinate Judge was right in holding that the suit was not maintainable. The con tention of the learned Advocate for the appellant must be upheld. The result therefore is that the appeal is allowed with costs. The judgment and decree of the Court of appeal below are set aside and those of the trial Court restored. A. E. Appeal allowed.