Later on i.e., on March 5, 1939 the purchaser Sivayya sold the right he had purchased to one Prakasalingam who, it is alleged, obtained symbolic delivery of possession of the undivided share of the joint family properties on November 6, 1939.
under O. 21, rr.
Sivayya having died pending the appeal in the High Court, the appellants as his successors in interest, have companye up to this Court in further appeal under Art.
Some of the defendants appealed to the High Court of Andhra Pradesh from this judgment.
The main defence of the companytesting defendants was that the suit was barred by limitation.
The plaintiff also filed a Memorandum of Cross Objections claiming the 1/6th share of the 6th defendant also.
The trial companyrt also found that there was symbolic delivery of possession in favour of Prakasalingam on November 6, 1939 and there was break up of adverse possession of defendants 1 to 5 and that the suit was, therefore, brought within time.
The High Court allowed the appeal on the ground that the suit was barred by limitation under Art.
Subsequently, Prakasalingam re transferred the properties to Sivayya.
Sivayya brought the present suit on October 16, 1951 against the other companyarceners and alienees from some of the companyarceners.
On November 6, 1939, an order was made.
35 2 and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to Prakasalingam along with the members of the joint family in actual possession.
A of the plaint.
The trial companyrt held that the suit was governed by Article 144 of the Limitation Act and Article 120 did number apply.
The trial companyrt accordingly gave a decree for partition and separate possession to the plaintiff of 2/3rds share of the properties mentioned in Sch.
The defendants preferred an appeal before the High Court of Andhra Pradesh against the judgment and decree of the trial companyrt.
Sivayya had filed a cross objection in the High Court on the round that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without a discussion of its merits in view of its decision on the question of limitation.
Thereafter Sivayya sold the properties purchased by him at the auction to one Prakasalingam.
The sale to Sivayya was duly companyfirmed.
The suit was filed by Sivayya for general partition.
The trial companyrt held that the 1/6th share of the 6th defendant one of the companyarceners did number pass to the plaintiff as the 6th defendant was born before the Court sale and he was number implement as a party in the present case.
On October 16, 1951, Sivayya filed the.
Appeal from the judgment and decree dated September 9.
It appears that Sivayya obtained a reconveyable of the right from Prakasalingam on April 11, 1945.
9 of 1953.
144 of Schedule 1 to the Limitation Act.
1960 of the Andhra Pradesh High Court in Appeal Suit No.
This order was duly carried out and possession was delivered to Prakasalingam by publishing that fact by beat of drum as prescribed in these rules.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Sarkar, J. In a certain money suit, being Small Cause Suit No.
420 of 1963.
300 of 1955.
was delivered by Sarkar J. Ramaswami, J. delivered a separate Opinion.
Suryanarayana Murti and T.V.R. Tatachari, for the appellant.
The trial Court decreed the suit but held that Sivayya was number entitled to a 4/5th share but only to a 2/3rd share because before the decree a 5th son had been bom to Narasimliaswamy who had number been made a party to the suit or the execution proceedings and whose share had number companysequently passed under the auction sale.
R. Chaudhuri, for respondents 1 to 13.
In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successors in interest are the appellants.
The father Narasimhaswamys share had number been put up for sale because an application fo.r his adjudication as insolvent was then pending.
suit out of which this appeal arises, against the then members of the joint family whose Sup/65 12 number had by that time increased, and various other persons holding as alienees from them, asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession.
The Judgment of Sarkar and Raghubar Dayal, JJ.
a decree had been passed against Narasimhaswamy and his four sons who were members of a Mitakshara Hindu joint family.
