Birbal Singh vs Shiv Lal

Jasbir Singh, J.

CM No. 1966-C of 2014:

This application has been filed to recall an order dated 15.1.2014 vide which RSA No. 1265 of 1987 was dismissed for non prosecution. In the application, which is accompanied by an affidavit, it is stated that non appearance of counsel for the applicant on the date fixed was not intentional.

The ground taken is justified. Accordingly, application is allowed, order dated 15.1.2014 stands recalled and RSA No. 1265 of 1987 is restored to its original number.

On request made by counsel for the applicant, RSA is taken up on board for final disposal today itself.

RSA No. 1265 of 1987:

This appeal has been filed against judgment dated 12.3.1984, dismissing suit filed by the appellant and further, against judgment dated 10.11.1986 vide which appeal filed by the appellants was also dismissed.

It is an admitted fact that one Sh. Bhaga was common ancestor of the appellants and the respondents. His sons Hans Ram and Ram Karan were owners in possession of agriculture land, description of which was given in heading of the plaint. They were owner to the extent of one half share each. It is on record that Ram Karan died in the year 1916. Mutation qua his share was sanctioned on 26.1.1917. Kewal Ram became owner of half of the land being son of Bhuji @ Ram Kaur and remaining half of the land went to Chet Ram and Ami Chand. Thereafter, on account of death, ownership of the land continued to be changed. On 12.10.1979 suit was filed challenging mutation No. 131 sanctioned on 28.5.1916 stating that it was wrongly sanctioned in favour of Ram Karan treating him as brother of Hans Ram.

Besides other issues, an additional issue regarding limitation was framed. After trial, other issues on merits were decided in favour of the appellants, however, the additional issue regarding limitation was decided against them. The appellants went in appeal which was also dismissed.

It was observed that suit was filed beyond the period of limitation. The trial Court has observed as under:-

Assailing the finding on the additional issue regarding time barred, it was contended on behalf of the plaintiffs-appellants that they continued to remain in possession of the suit property up to the date of consolidation proceedings despite of the wrong entry made under the mutation and the learned trial Court has committed an error in deciding this issue that the suit of the plaintiff-appellants is time barred, is not correct. In support of his argument, learned counsel argued that mere wrong entry in the revenue record would not effect the rights of the plaintiffs by bringing the suit for declaration that they continued to remain in possession of the suit property. The suit of the plaintiffs has to be deemed within limitation. Reliance was placed on Ibrahim Vs. Sharifan, wherein it was held as under:-

Whether mere entry of mutation in the name of defendant would furnish a cause of action to plaintiff to file a suit for declaration or not-Plaintiff continued to be in possession of property even after sanction of mutation in the name of defendant No cloud cast on title of plaintiff by mere entry of mutation in the name of defendant No cause of action arose when mutation entered in the name of defendant-Cause of action arose to plaintiff when defendant actually threatened to take forcible possession of land from Plaintiff-mere entry of a mutation in the name defendant would not furnish any cause of action to plaintiff.

Reliance was also placed in this behalf on Niamat Singh Vs. Darbari Singh and Others, wherein it was held as under:-

Under Article 120, Limitation Act, time begins to run not from the date on which an adverse entry is made in the revenue papers but from the date on which there is a fresh denial of the plaintiffs rights. If an adverse entry is made against a person who is in actual physical possession of property and if he continues to retain possession of the said property despite this entry in the revenue papers, he is under no obligation to bring a suit. If, however, his rights are actually jeopardised by the actions or assertions of the defendants then he must take proceedings within six years from the date of such actions are assertions.

So far as the proposition of law is concerned, that is not disputed but at the same time, the plaintiff-appellants and proforma defendant-respondents are not in possession of the suit property as held by me while deciding Issue No. 1. Therefore, the limitation would start from the date of entry made in the revenue record. In support of this circumstance, if any authority is needed, reference can be made to Lehna Singh and others v. Ram Singh and others 1981 PLJ 470, wherein it was held as under:-

(b) Limitation Act (36 of 1963), Articles 58 and 113 Suit for declaration to be owner by person not in possession alleging wrong entry in revenue records-Limitation, starting point-time when alleged wrong entry made in revenue records.

Reliance was also placed on Ghulam Mohiuddin Vs. The Official Assignee and Others, wherein it was held as under:-

(C) Limitation Act (36 of 1963), Article 113 Suit for declaration Right to sue accruing in 1967 Defendant continuously in possession in pursuance of lease since 1967-Suit in 1971 Held barred by limitation, the suit was not filed within 3 years.

Learned counsel for the contesting defendant-respondents further argued that mere ignorance and over-sight by the plaintiff would not extent the period of limitation as once period of limitation begins to run, it would continue to run. Reliance was placed on AIR 1978 Gauhati 10, The Commissioner of Taxes v. Glakh Nath Kakti and another in support of aforesaid argument.

The order was upheld by the Appellate Court.

It was found as a matter of fact that mutation which was challenged by filing the present suit, was sanctioned in the year 1916-17. That could have been challenged within one year only.

At the time of arguments nothing has been shown to say that opinion expressed by both the Courts below, qua limitation, was not correct. No question of law has been raised.

Dismissed.