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2015 (3) TMI 1361 - HC - Indian LawsPartition and separate possession of suit property - time limitation - HELD THAT:- An 'ostensible owner' would be a person in whose favour the title deed stands. The real owner may be another. An example would be a benami transaction. If a dispute arises in such cases, the presumption would be that the ostensible owner is the owner. The real owner would have to prove otherwise. If the property is transferred by the ostensible owner with the implied consent or to the knowledge of the real owner, then the real owner would be precluded from questioning the transfer. But on the facts of this case, the purchasers of the dispute property were Dhanram Modaliar and Venugopal Modaliar. It was the claim of Defendant No. 7 that they were ostensible owners. And the real owner was M/s. Standard Tile and Clay Works Limited. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. Hence, the application of Section 41 of the TP Act does not arise. Time Limitation - HELD THAT:- There is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence - the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable. Appeal allowed.
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