AIR 1963 MADRAS 84 ::1975 MadLW 563 ::(1963) 1 MadLJ41 ::ILR (1963) Mad 101

Madras High Court

Hon'ble Judge(s): Ganapatia Pillai, Veeraswami , JJ

Limitation Act (9 of 1908) , Art.142, Art.144— Possession of co-owners - Muslim co-sharers - Suit for partition and possession by alienee from co-sharer - Limitation - Article applicable is Art.144 and not Art.142 - Starting point of limitation. A suit for partition and separate possession of the fractional share purchased by a Mohammadan from all but one co-sharer, filed beyond twelve years of the purchase, is not barred by limitation in the absence of any proof of ouster by the co-sharer in possession of the entire property. Such a suit is not one for mere partition and the essence of the claim is for actual delivery of possession which of course would follow a division. Inasmuch as the prayers for partition and separate possession of an undivided share are composite in nature Article 144, which provides for a suit for possession of immoveable property otherwise specifically provided for, governs the suit as none of the Articles of the Limitation Act directly take within it a suit of that nature. It is not a suit in which the claimant alleges possession and dispossession and, therefore, Art. 142 does not govern the suit.(Para 3) The mere fact of alienation of the interest of the alienor-co-sharer will not amount to either ouster or impress possession of the co-sharer with the character of adverse possession. Mere non-particip....