Judgment:
V.R. Kingaonkar, J.
1. Challenge in this appeal is to judgment rendered by learned Joint Judge, Aurangabad in Regular Civil Appeal No. 56/1981 whereby and whereunder partition decree, granted in suit (RCS No. 42/1976) came to be reversed and the suit was dismissed.
2. Appellants are the original plaintiffs. They represent branch of deceased Genu alias Ganu Mali. They claimed 1/3rd share in 4 agricultural fields. The said fields are:
Sr. No. S. No. Admeasuring Called as a) 30 23 Acres 34 Gunthas 'Chahur' b) 31 03 Acres 26 Gunthas 'Lahana Chahur' c) 34 26 Acres 35 Gunthas 'Moti Padhra' d) 43 09 Acres 22 Gunthas 'Mala'
All the four agricultural fields are situated at village Kaundar, under Paithan tahsil (Dist-Aurangabad). They are referred herein after as 'the suit fields'.
3. There is no dispute about the fact that originally the suit fields were held by deceased Kamlaji. Said Kamlaji had 4 sons. The following pedigree table would clarify internal relations between the parties
Kamlaji (Deceased)----------------------------------------------------- Dasharat Amruta Piraji Lahanu(Deceased) (Deceased) (Deceased) (Deceased) (Issueless)(Genu) (Deceased) ----------------- ------------------------ Damu Ramu Govind Laxman Vithoba(Deceased) (Deceased) -------------------------- ---------------------- Bhimaji Ganpati Asaram Died Bapu(Died) D.2 D.3 Kashibai Df.4 (wife) Df.5 Deceased -------------- |---------------------------------------- Rahi Khoba Bapu Sham Samin Shanta bai bai (son) rao drabai bai (Drt) (Dtr) (son) (Dtr) (Dtr) ------------------------------------------------ Kashibai Ganesh Dagdabai Subabai Chabahai (wife) (son) Dau.D.5 D.5c Dau.D5d Minor U/g mother Kashibai D.5a --------------------------------------------------------- Kanhu Arjun Kausa Rakhma Shashi Suman Saru(son) (son) bai bai kala bai bai(wife) Dtr Dtr Dtr Dtr
4. There is no dispute about the fact that Piraji died issueless. There is also no dispute about the fact that the plaintiffs' father filed suit (RCS No. 175/2/1957) for partition and separate possession to the extent of his 1/3rd share in the suit fields. He asserted that he was suffering from leprosy and, therefore, Aasaram, who was husband of original defendant No. 5, was jointly cultivating the suit fields. The latter used to give agricultural produce and thereafter the defendants No. 1 to 4 used to give agricultural produce to him, till 1955. Since they refused to give agricultural produce, he sued them for partition and separate possession.
5. There is no dispute about the fact that plaintiffs' father - Ganu died during pendency of the said suit (RCS No. 175/2/1957). The plaintiffs were then minors. They were brought on record as his legal representatives. They were represented by their maternal uncle, by name Anna s/o Yeshwanta. Their guardian ad litium, Anna neglected to properly represent them. Therefore, their advocate filed an application to stay the proceedings of the suit (RCS No175/2/1957), until the plaintiffs would become major.
6. The plaintiffs' case before the trial court was that file of the Civil Suit was closed without calling upon them to exercise option for continuation of the suit. They were under shelter of their maternal aunt during minority and the defendants used to given them agricultural produce to the extent of their share till 1974. The defendants did no give them agricultural produce since 1974 onwards and, therefore, they filed separate suit (RCS No. 42/1976) for partition and separate possession as well as for recovery of past and future mesne profits. By filing his written statement, original defendant No. 1 Ambadas admitted the said claim. Original defendant No. 3 Ganpati resisted the suit by his written statement (Exhibit-20). His legal representatives subsequently adopted the same written statement, after his death. He denied correctness of the pedigree table as given by the plaintiffs. He admitted the pedigree table to the extent of deceased Amruta, deceased Piraji and deceased Lahanu, but denied that Dasharath was son of deceased Kamlaji. Thus, the pedigree table, to the extent of branch of the plaintiffs, is disputed by him. He also denied that deceased father of the plaintiffs was jointly cultivating the suit fields and used to give agricultural produce to the extent of his share. He asserted that family partition was effected between three brothers i.e. deceased Amruta, deceased Piraji and deceased Lahanu before 65 years. He asserted that deceased Dasharath or deceased Genu were never in joint possession of either of the suit fields. He further asserted that dismissal of the suit filed by Genu (RCS No. 175/2/1957) would amount to res-judicata, as it was between the same parties.
7. The parties went to trial over certain issues framed below Exhibit-22. The learned Civil Judge held that the pedigree table, mentioned by the plaintiffs, was duly proved. The learned Civil Judge further held that the plaintiffs were entitled to 1/3rd share in the suit field. The suit for partition was, therefore, decreed in their favour. The learned Civil Judge further held that the decree of dismissal in earlier suit (RCS No. 175/2/1957) would not amount to resjudicata. The learned Civil Judge held that the plaintiffs came to know about exclusion from the joint property only on 19.03.1976 when they were denied their share in the agricultural produce and hence the suit was within limitation.
8. The contesting defendants preferred Appeal (RCA No. 56/1981), which came to be allowed. The First Appellate Court held that the suit for partition was barred by limitation and, therefore, the same was liable to be dismissed. Thus, the suit was dismissed on the ground of limitation. The First Appellate Court, however, held that deceased Genu was the son of original holder of the suit fields, namely deceased Dasharath.
9. Feeling aggrieved by dismissal of the suit vide the impugned judgment and order, the original plaintiffs have preferred this second appeal. The second appeal was admitted by this Court (Hon'ble Mhase, J.) on following substantial questions of law:
i. Whether the Regular Civil Suit No. 175/2/1957 is disposed of on merits?
ii) If RCS No. 175/2/1957 was stayed under order XXXII Rule 12 of the Code of Civil Procedure, whether an opportunity was given to the minor plaintiffs, after attaining majority before disposal of the suit, to exercise their choice as to whether they would like to continue with the suit or abandon from the suit?
iii) If procedure under order XXXII Rule 12 was not followed, and the suit is closed, what is the effect of the said suit on the present suit?
Though the appeal was admitted on 02.05.2003 and was scheduled for final hearing on 01.07.2003, peremptorily, without printing of paper book, yet unfortunately, it could not be then finally heard and dragged on till now.
10. Mr.Dabir would submit that the First Appellate Court should not have dismissed the suit on ground of limitation, particularly, when the contesting defendants failed to prove ouster of deceased Genu or the plaintiffs from the suit fields. He argued that the suit could be filed within 12 years period from the date of knowledge of the ouster and, therefore, it could not be dismissed only because the plaintiffs did not file the suit within period of 3 years on attaining majority. He would submit that the First Appellate Court did not appreciate the fact that guardian ad litium of the plaintiffs committed negligence in attending the previous suit on their behalf and, therefore, it had to be stayed under orders of the Court. He would further submit that the plaintiffs are wrongly denied their right of partition. He urged, therefore, to allow the Second Appeal. Mr.Kapadia, learned advocate appearing for the contesting defendants, supported the impugned judgment. He submits that minority of the plaintiffs created limited disability, which could be extended only up to the period of 3 years after attaining majority in view of Sections 6, 7 and 8 of the Limitation Act. He would submit that the plaintiffs did not elect to continue the earlier suit filed by deceased Genu, after attaining majority and hence the subsequent suit could not be entertained in view of Order II Rule 2 of the Code of Civil Procedure. He urged, therefore, to dismiss the Second Appeal.
11. So far as effect of previous suit is concerned, it may be mentioned that the previous suit (RCS No. 175/2/1957) was filed by deceased father of the plaintiffs on the cause of action that he was denied share in agricultural income of the suit fields. He asserted exclusion from enjoyment of the suit fields by the contesting respondents. Thus, it is manifest that prior to 1957, said Genu was excluded from the suit properties. It appears that Genu was suffering from leprosy and was, therefore, segregated from the other members of the family. One cannot be oblivious of the fact that in olden days leprosy was treated as a social stigma and incurable disease. The lepers used to be practically outcasted. It appears that Genu was segregated from the family members during minority of the plaintiffs.
12. The plaintiffs have not filed any record to show that the previous suit (RCS No. 175/2/1957) was erroneously dismissed by the learned Civil Judge. Admittedly, on their own, the plaintiffs did not elect to continue the said suit. There is nothing on record to show that the Civil Court denied them opportunity to elect for continuation of the said suit. The provisions of O.XXXII Rule 12 of the Code of Civil Procedure provide for course to be followed by minor plaintiff, on attaining majority. If the minor elects to continue the suit then the next friend or guardian ad litium may be discharged. Minor may also abandon the suit, if he so desires. Rule 14 of Order XXXII of the Code of Civil Procedure provides that a minor may apply for dismissal of the suit on the ground that it was unreasonable or improper. The plaintiffs did not exercise any of the options. The earlier suit was stayed by order dated 14.11.1958. The application filed by learned advocate for the plaintiffs would show that as on 19.02.1958 they were aged 12 years, 10 years and 6 years, respectively. It is manifestly clear that they were aged about 30 years, 28 years and 24 years, respectively, at the time of filing the suit in question (RCS No. 42/1976). Needless to say, the suit for partition was filed much after 3 years of attaining majority by each of them. The plaintiffs (appellants) asserted that since death of their father Genu in 1965, they became orphans and were required to take shelter in the house of their maternal aunt, by name Smt. Gayabai. They asserted that defendants showed mercy towards them and used to provide grains to the extent of 1/3rd share till 1974. There appears no iota of evidence to show that the contesting defendants provided 1/3rd share of grains of the suit fields to the plaintiffs at any point of time.
13. It is explicit that the plaintiffs did not elect to continue the previous suit (RCS No. 175/2/1957), on attaining majority. The question which needs to be addressed is whether the separate suit, filed by them, was instituted on any fresh cause of action. For such purpose, it is necessary to consider the time of accrual of cause of action to claim partition. The cause of action to claim partition was set up by their father (Genu) in 1957. The cause of action available to him cannot be disassociated from the cause of action available to the plaintiffs. It is a continuing cause of action. Once the time started running against said Genu, it cannot be arrested except and save for legal disability shown by the plaintiffs. The provisions of Section 6(1) of the Limitation Act 1963 would make it amply clear that minor may institute a suit within the period allotted in 3rd column of the schedule, after the disability period is over. The suit can be filed by the minor within period of 3 years after attaining majority. The legal disability does not give afresh period from starting point of limitation, though it gives right to file the suit within period of 3 years, after removal of the disability. The Apex Court in Darshan Sing and Ors. v. Gurdev Sing : AIR1995SC75 held that elongation of period of limitation by Sections 6 and 7 is restricted to 3 years by Section 8 of the Limitation Act. It is held that Section 8 is proviso to Sections 6 and 7 of the Limitation Act. It is observed:
In other words, in each case, the litigant is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Section 6 or 7 shall exceed three years from the date of cessation of the disability. Considered from this perspective, we are clearly of the opinion that the suit of the respondent is barred by limitation. But unfortunately, the attention of the High Court was not drawn to Section 8 of the Act which laid down to its contra conclusion.
14. The Apex Court in Smt.Hukmi (Dead) and Ors. v. Smt. Gian Kaur : AIR1971SC782 clarified that the observations made by the learned Judge that a minor is entitled to period of twelve (12) years from the date on which he or she attains the age of majority, if the cause of action to sue arises during minority, is not correct. It is observed that the cause of action is not elongated beyond the original period of 12 years. Thus, the legal position, as settled by the Apex Court is that a minor may either continue the suit filed by his predecessor or may abandon the same. However, his right to sue would be available only within the period of 3 years, on attaining majority. It goes without saying that cause of action available to deceased Genu was the same, which the appellants inherited and ought to have been deemed as continued one. They could have continued the earlier suit or could have filed fresh suit only within a period of 3 years after attaining the majority. It is not expected that the defendants would be called upon to prove specific exclusion of the plaintiffs during their minority or subsequent thereto. The First Appellate Court was right in holding that the right of the appellants was not independent to the right available to their father. The learned Joint Judge was right in holding that the plaintiffs failed to plead that the suit fields were jointly possessed by them, on account of any subsequent development, though they vaguely pleaded that out of mercy fallen on them, the defendants gave them share of grains out of the annual crops derived from the suit fields. As stated before, there is no tangible evidence in this behalf.
15. For the reasons afore stated, I do not find any merit in the Second Appeal. The non election of the plaintiffs to continue the earlier suit may not bar the second suit, but it ought to have been filed within the period of 3 years after their attaining majority. Since it was filed beyond such elongated period of 3 years, the First Appellate Court rightly dismissed the same. In this view of the matter, the appeal deserves to be dismissed.
16. In the result, the appeal is dismissed. The parties to bear their own costs, though out.