Lehna Singh and others vs Ram Singh and others

J.V. Gupta, J.

The plaintiffappellants have filed this appeal against the judgment and decree dated March 1, 1969 of the District Judge, Sangrur, whereby the decree of the trial Court dismissing their suit for obtaining declaration that they were the owners of the suit land, was maintained.

The land in dispute was left by Mst. Dharmo, who died somehere in the year 198485 B.K. (192728 A.D.). Under the law at that time prevailing in the erstwhile Patiala State, the land was taken to be Nazool property. Subsequently, the principles upon which the land could escheat to the State were changed and it was ordered that the land in dispute should go back to the descendants of Toga and Joga of village Sekha. Under these circumstances, the land was mutated on 11.1.1986 B.K. (1929 A.D.) by the Revenue Authorities in favour of defendants Nos. 1 to 5. The land had already been mortgaged by Mst. Dharmo, during her life time, in the year 1975 B.K. (1918 A.D.) in favour of defendants Nos. 6 to 16, who were in possession thereof. The present suit was filed on 15th May, 1965, for declaration to the effect that the plaintiffs are the owners of the suit land measuring 247 Kanals 8 Marlas according to Jamabandi, 196263 situated at Sekha and the said entry in the Jamabandi, on the basis of which defendants Nos. 1 to 5 and the other persons, who had been entered as the owners in the Jamabandi, is wrong and due to wrong entry it has no effect on the rights of the plaintiffs regarding the disputed land. The plaintiffs claimed rights of ownership in the land as being thulladers. The trial Court on the basis of the pleadings of the parties, framed the following issues :

``(1) Whether the plaintiffs are the owners of the land in dispute ? O.P.

(2) If issue No. 1 is proved, whether plaintiffs are entitled to get the declaration as sought for ? O.P.

(3) Whether the suit is within time ? O.P.

(4) Whether the suit is properly valued for purposes of courtfee ? O.P.

(5) Whether the suit is bad for misjoinder and nonjoinder of necessary parties ?''''

The trial Court dismissed the plaintiffs'' suit as it came to the conclusion that the plaintiffs were not the owners of the suit land and also on the ground that they failed to prove that they were entitled to get the declaration sought for. However, on the question of limitation, the trial Court found that the suit was within time. On appeal, the learned District Judge maintained the findings of the trial Court on issues Nos. 1 and 2 and dismissed the plaintiffs'' appeal, but did not give any finding on issue No. 3, as to whether the suit was within time or not. Feeling aggrieved against this, the plaintiffs have filed this second appeal in this Court.

At the very outset, the learned counsel for the defendantrespondents raised the objection that this appeal can be disposed of on the ground of limitation alone as the suit filed on 15th May, 1965, for declaration was clearly time barred. According to the learned counsel, there was a specific issue framed by the trial Court and though the finding given thereon was in favour of the plaintiffs, but since it is a question of law, though not decided by the first appellate Court, can be taken up here in second appeal. However, the learned counsel for the plaintiffappellants was not prepared on this question of limitation and, therefore, in order to provide him an opportunity, the case was adjourned earlier.

The learned counsel for the plaintiffappellants has contended that the contesting defendentrespondents are only proforma defendants and they should not be allowed to take this plea in this appeal. According to the learned counsel, as a matter of fact they were not entitled to take any such plea and it was defendants Nos. 1 to 5, who could contest the same. In any case, it was further submitted that the trial Court decided this issue in favour of the plaintiffs and the correctness of the same was never challenged before the lower appellate Court and, therefore, the defendants should not be allowed to take up that issue again in this Court in second appeal.

I have heard the learned counsel for the parties at great length on this matter and have also gone through the plaint and the written statement filed on behalf of the contesting defendants. In view of the provisions of Order 41 Rule 22 of the Code of Civil Procedure, it could not be successfully contested on behalf of the plaintiffappellants that the defendants are not entitled to take this plea of limitation, particularly when a specific issue was framed by the trial Court and the plaintiffs had ample opportunity to lead their evidence in support of the same. Admittedly, the defendantrespondents could not file any crossobjections as the plaintiffs'' suit was dismissed in toto, and they did not claim any other relief in the appeal.

The learned trial court, has disposed of issue No. 3 with the following observations :

``Issue No. 3. It has been contended that the defendants 1 to 5 were not in possession of the property for the last 45 years and when they sought to make alienation the plaintiffs felt aggrieved and they filed the suit and, as such, it was within limitation. I entirely agree that in view of the fact that the owners according to the revenue record were out of possession and the mortgagees were in possession of the property, as such, there was no occasion for the claimants to apprehend any injury to their supposed rights in the suit land as that when they declared that they felt aggrieved on 15.4.1965, they could be believed but it is strange that not a single person was examined on this point to show that in fact the plaintiffs apprehended injury to their interest. No such evidence was produced in this Court. Anyhow in as much as in the plaintiff itself, there is mention of such apprehended injury, the suit is held to be within time.''''

From the perusal of the judgment of the trial Court, it has been found as a fact that no one appeared on behalf of the plaintiffs on the point to show that in fact they apprehended any injury to their interest. I have gone through the statement of plaintiff Lehna Singh P.W. 1. He has nowhere stated that any such injury was being apprehended by the plaintiffs. In my considered opinion, the trial Court has decided this issue of limitation in a very perfunctory manner. Mere allegation in the plaint of the apprehension of the plaintiffs itself was not sufficient if there was no evidence to that effect, particularly when the same was denied in the written statement.

On behalf of the plaintiffappellants, it was vehemently contended that the suit for declaration was within time as the same could be filed at any time whenever there was any threat to their rights. In support of his contention, the learned counsel for the plaintiffappellants cited Fateh Ali Shah and others v. Muhammad Bakhsh and others, AIR 1928 Lahore 516, Ghulam Mohammad Khan and others v. Sumundar Khan and others, AIR 1936 Lahore 37, and Hazari etc. v. Roop Narain, 1974 Current Law Journal 33. I have gone through these judgments and I am of the opinion that none of these is applicable to the facts of the present case as in all these cases, the plaintiffs were in possession of the suit property though the entry in the revenue records was adverse to their interest. Of course, in a case where the plaintiffs are in possession of the suit property, they may file a suit for declaration because their rights are being threatened to be invaded by the defendants. In the present case, there is no allegation in the plaint that the plaintiffs were in possession of the property at any time after the death of Mst. Dharmo in the year 198485 B.K. Throughout, the suit land has been in possession of the mortgagees and after the death of Mst. Dharmo, the mutation of inheritance was sanctioned in favour of the defendants of Toga and Joga of village Sekha as far back as in the year 1986 B.K. i.e. 1929 A.D. Since then the entry in favour of the defendants has continued and was never challenged by the plaintiffs. Under these circumstances, a suit for declaration to the effect that the plaintiffs are the owners of the suit land on the basis that they are heirs of the deceased Mst. Dharmo, is clearly time barred. Section 45 of the Punjab Land Revenue Act, 1887, provides as under :

``45. Suit for declaratory decree by persons aggrieved by an entry in a record. If any person considers himself aggrieved as to any right of which he is in the possession by an entry in a recordof rights or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877''''.

This section presupposes that the persons who is aggrieved of an entry in a recordofrights or in an annual record, must be in possession of the suit land and only then he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877. In the plaint, the plaintiffs never claimed themselves to be in possession of the suit property and, therefore the present suit for declaration was not maintainable under the provisions of section 45, reproduced above.

Faced with this situation, the learned counsel for the plaintiffs contended that since the land had been in possession of the mortgagees, their possession will be deemed to be that of the owners and, therefore, the suit for a declaration as such was maintainable. This argument is not available to the plaintiffs as they were never admitted to be the owners of the suit land either by the mortgagees or by the persons who were entered as the owners of the suit land in the revenue record on the basis of the mutation sanctioned in their favour in the year 1929 A.D. As a matter of fact, it is their right of ownership which the plaintiffs are seeking in the present suit for their first time after the death of Mst. Dharmo in the year 192728 A.D. Under the circumstances, the suit was hopelessly barred by time. The cause of action to plaintiffs, if any, arose at the time when the alleged wrong entry in favour of defendants Nos. 1 to 5 was made in the revenue record in the year 1929 A.D.

Since the appeal is liable to be dismissed on the ground that the suit itself was barred by time, no other point need be gone into though both the Courts below have concurrently found that the plaintiffs are not the owners of the land in dispute.

The plaintiffs have also filed an application under Order 41 rule 27 of the Code of Civil Procedure, for production of additional evidence in order to prove their ownership on the suit land, but under these circumstances, the question of ownership becomes irrelevant and, as observed earlier, both the Court below have concurrently found against the plaintiffsappellants.

Consequently, this appeal fails and is dismissed with no order as to costs.