TaxTMI 
TaxTMI 
1980 (2) TMI 289
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....e suit for partition and separate possession of his one-third share in the suit properties. His case was that his grandfather Rajulier and his wife Kasturi Bai Ammal had executed a settlement deed Ex. B1 dated 1-3-1937, that as per that settlement, he is entitled to a third share in the suit properties, that Rajulier and his wife had executed another settlement deed, Ex. B11, dated 12-5-1944 giving the suit properties not only to the sons of the first wife of his father, Krishna Iyer, but also to the children of his second wife, the first defendant that Rajulier and his wife had no power to alter the provisions made in the earlier settlement deed, Ex. B1 dated 1-3-1937, and that, therefore, the plaintiff is entitled to seek partition on the....
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....ement deed, Ex. B11 cannot be taken to be valid. But having regard to the fact that defendants 2 to 7 have enjoyed specific properties allotted to them under the later settlement deed dated 12-5-1944, exclusively and in assertion of their own right, it held that they should be taken to be in adverse possession of those properties since 1944, that the suit in this case having been filed In 1966 long after the plaintiff attained 21 years of age, the suit, should be taken to be barred by time as against defendants 2 to 7, since defendants 8, and 9 did not contest the suit, a preliminary decree was passed against them for partition and separate possession of the plaintiff's one-third share in respect of the properties allotted to the childr....
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.... by respondents 2 to 7, who are defendants 2 to 7 in the suit as also the appellants. 5. According to the learned counsel for the 8th respondent, since he supported the case of the plaintiffs in the suit and as he is also entitled to a third share in the suit properties and now that the appeal is being abandoned by the appellants, it is just and necessary that, he is transposed as the third appellant. It is pointed out by the learned counsel that the court has got ample powers to transpose a respondent as appellant under Order 23, Rule 1A, C. P. C. whenever the appellant withdraws or abandons an appeal. Though the learned counsel for the respondents 2 to 7 contended that Order 23, Rule 1A, C. P. C. will apply only to a suit and not to a ....
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....ppeals at the appropriate time. He having failed to do so cannot now take advantage of the pendency of this appeal filed by the plaintiffs. On the issue as to whether the question of limitation will arise if the 8th respondent is transposed as the 3rd appellant, the learned counsel for the both respondent states that See. 22 of the Limitation Act 1908 will apply only to suits and not to appeals and, therefore, the appeal cannot be taken to have been filed on the date of transposition. In support of that stand, learned counsel refers to the decision reported in Bhubneshwar Prasad v. Sidheswar, AIR 1949 Pat 309 : AIR 1949 Pat 309. In that caw, it has been held that as Section 22 of the Limitation Act 1908 will not apply to appeals, if a respo....
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.... 8th respondent has taken advantage of the settlement deed dated 12-5-1944, without questioning the validity of the same, and has been dealing with the properties all these years, the other respondents are entitled to contend that he is estopped from questioning the validity of the subsequent settlement deed. Thus, by transposing the 8th respondent as an appellant, the scope of the appeal will be widened. The court will be reluctant to transpose a respondent as an appellant in such cases where there is likelihood of the scope of the appeal being widened. As a matter of fact, in the decision reported in Bhubneshwar Prasad v. Sidheswar, AIR 1949 Pat 309 : AIR1 949 Pat 309, already referred to, the Division Bench specifically points out that t....