Madras High Court
Abdul Kader vs Aishamma on 26 October, 1892
Equivalent citations: (1893)ILR 16MAD61
JUDGMENT
1. It appears to us that the question whether there is any conflict between Sithamma v. Narayana I.L.R., 12 Mad., 487 and the other cases referred to in the order of reference does not really arise in this suit. The plaintiff's case is that since the deaths of her grandmother and mother, she and the defendants have enjoyed the property in common, but that she has now been excluded from the common possession and enjoyment. Hence her cause of action arises from the date of her exclusion or dispossession, and not from the date when her share became deliverable on the death of the persons to whom the property originally belonged.
2. In Patcha v. Mohidin I.L.R., 15 Mad., 57 it was held that Article 127 of the Limitation Act did not apply, and that plaintiff had never obtained any distribution of her share. In Kasmi v. Ayishamma I.L.R., 15 Mad., 60 the suit was for partition and participation in the possession and enjoyment of the property was not alleged.
3. In both these cases it was held that Article 123 applied. Sithamma v. Narayana was not referred to, and it does appear that any objection was taken on the ground that the parties sued were not the lawful personal representatives of the deceased.
4. We would reply to the Division Bench that the case is governed by Article 144, Schedule II of the Limitation Act.
5. This second appeal came on for disposal before the Division Bench, the Chief Justice and Mr. Justice Parker. The parties were represented as before.
6. The Full Bench has held that the suit is governed by Article 144 the Limitation Act; hence it is not barred.
7. It is then urged that the Courts below were in error in holding it res judicata that the property was not self-acquired by Jainuddin. It is true that plaintiff and fifth defendant's father were co-defendants in the former suit, but it is not shown from Exhibit B whether this matter was in controversy between them or not. The suit was decided ex parte as far as plaintiff' was concerned.
8 It is not necessary, however, to make any enquiry upon this point. No evidence was adduced by the fifth defendant in the suit, and as formal evidence was offered on plaintiff's behalf, it would be of no use to ask for a finding upon the second issue in the absence of evidence.
9. The second appeal, therefore, fails and we dismiss it with costs.