JUDGMENT
V.V. Vaze, J.
1. Our story start in 1877 and no one can tell unless he has a peep into the womb of time, when it will end.
This appeal concerns itself with partitioning of agricultural property in `Khoti’ village of Mouje Har kul Budruk in the Kankavli taluka of Kokan area. The land tenure system prevalent in this part of Konkan was akin to the Malguzari system of central area unlike the Rayatwari system of rest of Maharashtra. A number of muslim families were allotted Khoti village and it is a common ground that so far as inheritance and succession to Khoti property was concerned, the Patels of Mouje Harkul Budruk (Harkul BK.) whether Hindus or Muslims were governed by Hindu Law.
2. Certain parcels of land numbering about 70 described in the schedule to the plaint constituted the holdings of the village Harkul BK. All these parcels of land though large in number hardly extended over 15 acres and 20 gunthas and vested in one Ismalisha as the Patel of that village whose family genealegy was as under :—
Ismailsha
|
——————————————————
| |
Imamsha Latifsha
|
Ibrahimsha = Jainabi
(D166) (D165)
|
-----------------------------------------------------------
| | |
Abdulsha A. Latifsha Hdayyatullah
(D6) (D7) (D8)
At this stage, it will be apposite to state the geneology of another muslim family of which Mahamadsha was the prepositus.
Mahamadsha
|
------------------------------------------------------------------
| | |
Badesha Rahomadsha Husseinsha
(1/3) (1/3) (1/3)
|
(Saledeed
|
D/-5.3.1911) -------------------------- = Fatima (D2) died
| | | |
Bapusha Mahamedsha Mahmudsha Raj Ahmed =Halima
(P1) (P2) (D1) (D5)
|
--------------------------------------
| |
Rahimansha A. Ganisha
(D3) (D4)
3. On 5th September, 1977 Ismailsha had executed a mortgage-deed in favour of Mahamadsha for a consideration of Rs. 600/- in respect of the suit lands. The family of Ismailsha could not repay the loan and some 34 years after execution of the mortgage, the mortgagee decided to purchase the equity of redemption. A document styled as sale-deed for a consideration of Rs. 1000/- was executed on 5-3-1911. By this period the original mortgager Ismailsha and one of his son Latifsha were dead leaving another son Imamsha and one widow of Latifsha i.e. Jainabi, Ibrahimsha and Jainabi appeared as Vendors in the 1911 sale-deed which has been executed in favour of Badesha, one of the three sons of the original mortgage Mahamadsha. The sale-deed makes a reference to the mortgage dated 5-9-1977 and other dues under a decree of the Devgad Court totalling to Rs. 1000/- and recites that “the mortgaged property was in the possession of the mortgagee which was being sold to Badesha.”
4. As the family of the mortgage Badesha was in possession of the mortgaged property right from 1877 the sale deed dated 5-3-1911 only added a complexion of title to their possession which till than was as a mortgagee.
5. Matters stand on that footing for another 25 years.
6. A general suit of partition of property in Harkul BK. being R.C.S. No. 365 of 1936 was filed in the Court of Civil Judge, Junior Division, Devgad. As would be expected there were number of plaintiffs and defendants arrayed therein, the later probably totalled upto 259. The defendant Nos. 1 to 16 were the Khoti sharers and rest of the defendants in that suit were alienees of some of the sharers. Ibrahimsha and Jainabi figured as D166 and D165 while Bapusha, Rahimansha and Fatima were defendant Nos. 2,3 and 4. The suit was decreed against which Bapusha preferred Civil Appeal No. 57 of 1947 while another appeal being Civil Appeal No. 121 of 1947 was filed by Fatima. As respects the properties covered by the sale deed dated 5-3-1911 it appears that the branch of Husseinsha viz. his widow Fatima and son Raj Ahmed had obtained liberty from the lower Court to agitate their rights by a separate suit.
7. Taking a cue from this order, Bapusha of the branch of Badesha in Civil Appeal No. 57 of 1947 agitated that the benefit of that order permitting the branch of Husseinsha to file a separate suit may also be given likewise to his branch. Counsel for both the sides agreed before the Appellate Court that the request was an equitable one with the result that the Civil Judge, Senior Division with appellate powers at Ratnagiri in Civil Appeal No. 57 of 1947 modified the lower Court’s judgment and substituted the following order :—
Alienations in favour of the family of defendants Nos. 2 to 4 may be got proved by them by filing separate suits, provided that they do not affect the rights of the persons who are strangers to those transactions in any way, provided further that the partition proceedings are not to be held up in consequence of such suits, defendant No. 3 will have this right against all the aliners. Defendant No. 2 will have that right only against respondents in District Court Appeal No. 57 of 1947, excepting respondent No. 1. Defendant No. 4 will have that right only against respondents in District Court Appeal No. 121 of 1947 expecting respondents Nos. 1 and 2(1) to 2(5).”
8. Before this appeal could be decided the proceedings for executing the decree in Civil Suit No. 365 of 1936 were pending in Darkhast No. 80 of 1947. As the number of parties in partition suit was large (including practically everyone in the village) the partition could not be effected by metes and bounds and has not been so effectuated even today.
9. Another 28 years passed by.
10. Mahamadsha and Mahmudsha the two sons of Rahimansha filed Regular Civil Suit No. 25 of 1976 in the Court of Civil Judge, Junior Division, Kankavli against the branches of their real uncle Husseinsha and Badesha. They also arrayed as defendant the son of Ibrahimsha who was a Vendor of the 1911 sale-deed and also represented the branch of mortgagor of the 1877 mortgage. The plaintiff recited the history of the property ; how Ismailsha had mortgaged it to Badesha in 1877, how it was sold by a registered sale deed in 1911 and alleged that the purchase by Badesha under the sale-deed dated 5-3-1911 was in fact for the benefit of the entire family of the propositus Mahamadsha in which Badesha, Rahimansha and Husseinsha had each 1/3 share. They therefore referred to 2/3 pies share of D. 6, 7 and 8 who stepped into the shoes of their father Ibrahimsha (d. 166) and prayed that in the execution of Regular Civil Suit No. 365 of 1936, for partition pending in the Kankavli Court the suit property should be allocated to the share of defendants 6,7 and 8 and that by adjusting the equities arising under 1911 sale deed the suit property should further be allotted to the share of the plaintiff and defendants 1 to 5 who were the legal representatives of the Vendees under 1911 sale-deed. The suit was dismissed in its entirety by the trial Court.
11. The first Appellate Court found that the appellants have 1/3 share in the suit property but dismissed the suit on the ground that it is barred by limitation giving rise to the present second appeal.
12. Mr. Manudhane, learned Counsel for the appellants has attacked the judgment of the Appellate Court on the issue of limitation on two grounds. In the first place, Counsel submits that Article 101 upon which reliance was placed by the lower Court has no application because the plaintiff-appellant is not drawing sustenance from the judgment in the 1936 suit. All that the Appellate Court in Civil Appeal No. 57 of 1947 did is to permit Bapusha to cross the box which otherwise would have come in his way under clause 3 of Rule 2 of Order II of Civil Procedure Code. Leave of Court, submits Counsel, under the Order II, Rule 2 is not tantamount to a judgment because under clause 9 of section 2 of Civil Procedure Code a judgment refers to grounds of decree or order and statement connected therewith.
13. As regards the plea of adverse possession under Article 65 Mr. Manudhane submits that in a partition suit the question of adverse possession does not arise and each of the co-sharers or tenants in common hold on behalf of the entire body of sharers or tenants in common.
14. According to Mr. Jahagirdar who supports the judgment the moment a sale-deed is executed and someone other than Vendee is in possession of the property time starts running against the Vendee because the possession of the third party is irreconcilable with the title of the Vendee under the sale-deed. Such being the case Mr. Jahagirdar reckones 1911 as the starting point of limitation and submits that the suit is obviously barred by time. Alternatively says Counsel, the time started running against the vendee from 1948 when liberty was granted to him by the Appellate court to file a suit based on title. As per the equitable principle of Hindu law regarding adjusting equities arising out of sale of specified properties by Hindu co-parceners to unwary purchaser, the cause of action to get this equitable relief could be founded only in the Appellate Court Judgment because even the lower Court had negatived the claim of the appellant. On these three counts, it was submitted that the lower Courts decree dismissing the suit should not be disturbed.
15. In the trial Court an issue was framed as to whether defendant Nos. 6 and 8 proved that they have become owners of the suit property by adverse possession of more than 12 years. When the matter came up before the trial Court for arguments Mr. Marathe, learned Advocate, for defendant Nos. 6 and 8 conceded that he is not pressing the issue and the trial Court observed that there is no evidence on the point of adverse possession and answered the issue in the negative. In the First Appellate Court, the point of adverse possession was not pressed. However, before me, Mr. Jahagirdar, learned counsel for the defendants did argue that the defendants have perfected their title by adverse possession but could not show as to how the possession could be adverse when a suit for partition was already pending and the final decree has not been drawn up even as on today. Obviously no question of adverse possession arises between co-shares or tenants in common when general suit for partition and possession is pending even now.
16. That brings me to the question of application of Article 101 to the facts of the present case on the basis of which both the lower Courts have dismissed the suit.
Article 101 of the 1963 Act, reads as under :—
"Upon a Judgment 3 years. The date of including a Foreign the Judgment Judgment, or or recognisance. recognisance." In the 1908 Act, this subject was dealt with in two Articles viz. Articles 117 and 122 which read as under :--- Art. 117 "Upon a Foreign 6 years. The date of Judgment as the Judgment." defined in the Civil Procedure Code 1908 (V of 1908). Art. 122 "Upon a Judgment 12 years The date of obtained in a the Judgment British India or or a recognisance. recognisance."
17. This scheme of having two articles one for a suit upon a Foreign judgment and another upon a Judgment in British India or a recognisance obtained in the earlier two Limitation Acts of 1877 and 1871. A judgment defers from a contract as chalked from cheese ; and one may feel that they make strange bed-fellows rammed together in the first column of Article 122. The reason is not far to seek. The nature of an action on a Foreign Judgment brought in England was stated by the Court of Appeal in Grant v. Easton, (1883)13 Q.B.D. 302 at 303 by Sir Baliol Baett MR. thus:
“An action upon a Foreign judgment may by treated as an action in either debt or assumpsit ; the liability of the defendant arises upon the implied contract to pay the amount of the Foreign Judgment.”
(Quoted with approval in Borliner Industriebank v. Jost, (1971)2 All E.R. 1513)
18. The Law Commission observed that Articles 117 and 122 (1908 Act) related to suits upon a Foreign Judgment (as defined in the Civil Procedure Code) and upon a Judgment or recognisance. The periods provided were 6 years and 12 years from the date of judgment of recognisance. In England, such suits were treated as suits on contracts. Adopting this principle the Law Commission recommended a uniform period of three years’ limitation to bring the articles on par with those dealing with contracts. The Commission also recommended one composite article in the place of two articles. Accordingly the present provision was enacted in 1963.
19. Such is the reisen d’etre for reducing the period of limitation in such cases from the varying periods of 6 and 12 years to uniform period of three years.
20. In order to succeed in his argument that the order of the Civil Judge, Senior Division with appellate powers at Ratnagiri is the terminus a quo for computation of limitation u/s. 101 of the Limitation Act, the respondent must demonstrate that order is a “Judgment” for the purpose of application of Article 101 of the Limitation Act. While examining whether the order of the Appeal Court in C.A. No. 57 of 1947 is a judgment for the purpose of Article 101 of Limitation Act 1963 one will have to steer clear of the catena of cases dealing with that expression in clause 9 of section 2 of Civil Procedure Code or clause 15 of the Letters Patent of Bombay and Calcutta High Courts. In these decisions the Courts addressed themselves to the question whether a particular order of the Court is appealable or not. For our purposes it would be proper to refer to the observations in Justices of Peace in Calcutta v. Oriental Gas Co., reported in (1872)8 Bom.L.R. 433, (sic) which by now are considered to be locus classicus :
“We think that `Judgment’ means a decision which affect the merits of the question between the parties by determining some right or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole case or suit and a preliminary or interlocutory judgment determines only a part of it leaving other matter to be determined.”
21. Applying the above test to the order of the Ratnagiri Appellate Court it can easily be seen that Court did not give any decision “which affects the merits of the question between the parties by determining some right or liability.” It never pronounced on the merits of the allocation in favour of the family of defendant Nos. 2 to 4 but only removed the bar of Order II Rule 2 which the adjective law of the Civil Procedure Code had put on the plaintiff. The Ratnagiri Appeal Court Order declared no rights, created no cause of action nor did it purport to resuscitate any claim which might otherwise have been barred by limitation. This sine quo non of application or article 101 to the facts of the case viz. that the order in Civil Appeal No. 57 of 1947 passed by the Ratnagiri Appeal Court should be a judgment within the meaning of that article is absent and hence the submission fails.
22. Lastly, Mr. Jahagirdar picks holes in the style of drafting of the plaint and urges that the relief clause and other averments as drafted do not indicate that the suit is based on title but point out to the decree in Civil Suit No. 365 of 1936 and seeks modification of the same. One has to remember that the pleadings were drafted in moffusil place but a reading of the plaint as a whole bears out that the plaintiff is tracing his title to the sale deed and made a reference to the 1936 decree only for the purpose of pressing into service the equitable principles of Hindu Law by which properties alienated by members of a joint family were to be allocated to the share of their vendors in a general partition so that vendees are not driven to file fresh suits against their Vendors.
23. In the result, appeal succeeds which costs throughout and setting aside the judgments and decrees of the Courts below it is ordered that the suit of the plaintiffs succeeds and a decree in terms of prayer clause 9(a) of the plaint shall follows.
24. While effecting the partition of the land, the allocation should be done as prayed in clause 9(a) of the plaint so far as is reasonably practicable under the circumstances of the case.