Munshi and Others vs Bhag Mal and Others

B. Rai, J.—This Regular Second Appeal arises out of a suit filed by Bhag Mal alias Ram Bux and others for possession of agricultural land measuring 85 Kanals 18 Marias fully described in Para No.1 of the amended plaint, situated in the revenue estate of Village Bai Khera, Tehsil and District Gurgaon. The suit for possession of 1102/1615 share of the suit land was decreed against the defendants with costs by the learned Subordinate Judge IInd Class, Gurgaon, vide his judgment and decree, dated November 4, 1978. The appeal preferred by the defendants was dismissed by the learned Senior Subordinate Judge (with enhanced appellate powers) Gurgaon, vide his judgment and decree dated March 26, 1979.

Brief facts of the case are that there was one Sher Singh son of Ballu resident of Village Bai Khera. He was husband of Smt. Bharto respondent No.4 and father of other respondents. Sher Singh was the owner of the land measuring 85 Kanals 19 Marias as mentioned in Para No.1 of the amended plaint. Sher Singh sold the said land in favour of Bansi, mutation of which was sanctioned on July 24, 1953 in favour of Bansi. Bhag Mal and Puran respondents feeling aggrieved of the said sale, brought a reversionary suit alleging that the sale in question was without consideration and legal necessity. That suit was dismissed by the trial Court. Bhag Mal and Puran respondents preferred an appeal before the Additional District Judge, Gurgaon, who set aside the judgment and decree of the trial Court vide his judgment and decree, dated April 11, 1969 holding that the sale in respect of 1102/1615 share in the land sold was ineffective against the reversionary rights of Bhag Mal and Puran respondents. Bansi was not satisfied with the judgment and decree of the lower appellate Court. He carried a Regular Second Appeal to this Court against the said judgment and decree. During the pendency of Regular Second Appeal, Bansi appellant died on October 4, 1976.

Munshi, Jai Pal and Sham Lal sons of Bansi resident of Village Bai Khera, Tehsil and District Gurgaon filed C.M.No. 1656-C of 1977 under Order XXII, Rule 3, read with Section 151 of the Code of Civil Procedure, praying that they be brought on record as Legal Representatives of Bansi deceased. Along with the said application, they also filed C.M.No. 1657-C of 1977 u/s 5 of the Limitation Act, praying that the delay in filing the application be condoned. At the time of hearing, application under Order XXII, Rule 3 read with Section 151 of the Code, for impleading the Legal Representatives was treated as an application under Order XXII, Rule 3 read with Section 151 of the Code, for impleading the Legal Representatives was treated as an application under Order XXII, Rule 9 of the Code for setting aside the abatement. However, the same having been filed beyond a prescribed period of limitation, was dismissed by a learned Single Judge of this Court, vide judgment, dated October 14, 1977. It was also observed that the Appeal (RSA No. 1121 of 1969) stood abated on the non-impleading of the Legal Representatives within the prescribed time and was dismissed as such.

After the death of Sher Singh alienor, his reversioners filed a suit for possession of 1102/1615 share in the suit land against Munshi, Jai Pal and Sham Lal sons of Bansi alienee,. During the pendency of the suit, Jai Pal also died. Karan Singh, Azad Singh and Smt. Karanwati were brought on record as Legal Representatives of Jai Pal.

Admitting that Sher Singh had died, the defendant-appellants challenged the locus standi of the plaintiffs to file the suit; that the suit was barred by time; that it was not properly valued for purposes of court-fee and jurisdiction; that the suit was bad for non-joinder of necessary parties; and that the plaintiffs were not the heirs of Sher Singh.

The plaintiffs filed Replication, controverted the pleas taken in the written statement and reiterated those contained in the plaint.

The trial Court framed the following Issues:

1) Whether the suit is within limitation? OPP (onus objected)

2) Whether the plaintiffs are not having locus standi to file the suit? OPD (Objected to)

3) Whether the plaintiffs are not the sole heirs and can''t sue for the whole land? OPD (Objected to)

4) Whether the defendants have become owners by prescription?

5) Relief.

All the Issues were decided against the defendants and decree for possession of 1102/1615 share in the suit land was passed with costs. The appeal preferred by defendants was also dismissed with costs of Rs. 50/-.

The defendants feeling aggrieved have carried the matter to this Court in Regular Second Appeal.

I have heard the learned counsel for the appellants and have carefully gone through the records. It was argued by the learned counsel for the appellants that Regular Second Appeal No. 1121 of 1969, on the death of Bansi stood abated and was dismissed as such. That Appeal was not decided on merits and, as such, no decree was passed by this Court. It was, therefore, contended that both the Courts below have taken erroneous view that the decrees passed by the trial Court and the lower appellate Court had merged in the decree of this Court and that the declaratory decree can be said to have been obtained on October 14, 1977 when Regular Second Appeal No.1121 of 1969 was dismissed by this Court and from this date the suit brought by the respondent-plaintiffs on November 3, 1977 was well within time. The learned counsel for the appellants has referred to Article 2(b) of the Schedule to Punjab Limitation (Custom) Act, 1920 and argued that the plaintiff had obtained the decree on April 11, 1969. The suit could be Filed within three years from the date of decree. The suit having been filed on November 3, 1977 was barred by limitation and deserved to be dismissed on that score alone. I find sufficient force in this contention. Article 2(b) of the Schedule reads as under:

SCHEDULE _____________________________________________________________________________________________ Description of suit Period of Time from which Limitation period begins to run. 1 2 3 _____________________________________________________________________________________________ 2. A suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom_____ (a)if no declaratory 6 years From the date as decree of the nature provided in Column referred to in Article 1 is No.3. of Article 1. obtained. (b)if such declaratory 3 years The date on which the decree is obtained. right to sue accrues or the date on which declaratory decree is obtained, whichever is latter. 11. The respondents had obtained the, decree from the Court of learned Additional District Judge on April 11, 1969 and as per Article 2(b) of the Schedule, the respondents could file a suit within three years but the suit was filed on November 3, 1977. Therefore, the suit filed by the respondents was clearly barred by limitation. As per Death Certificate Exhibit D11, Sher Singh had died on February 25, 1973. Even if it be taken that right to sue to file a declaratory suit accrued to the respondents on February 25, 1973, the period of three years had already expired before the suit was instituted on November 3, 1977. Viewed from any angle, the suit filed by the respondents was barred by limitation and could not be decreed. Possibly, there can be no quarrel with the established principle of law that the appeal is a continuation of the suit, but where execution of the decree under appeal is not stayed, it cannot be said that the subject-matter of decree under appeal is in a melting pot. Where execution of the decree under appeal is not stayed, there is no impediment in its execution and the decree holder has every right to get the said decree executed. In the instant case, execution of the decree under appeal was not stayed. Therefore, it was fully executable at the instance of the respondent-decree holders. Admittedly during the pendency of the appeal, Bansi had died. Within prescribed period of limitation, Legal Representatives of Bansi appellant were not brought on record and the appeal stood abated. Where sole plaintiff or appellant dies and his Legal Representatives are not brought on record within a prescribed period of limitation, the suit or appeal automatically stands abated and no formal order is required to be passed. When a suit or appeal so abates, the subject-matter of the same is not decided on merits. As such, no decree follows. In the case in hand, as is clear from Exhibit P4, the appeal filed by Bansi stood abated on his death and no decree was passed by this Court. Therefore, I find that the learned counsel for the appellants has rightly argued that both the Courts below fell in error in arriving at a conclusion that the decrees passed by the Courts below had merged with the decree of this Court and that period of limitation is to be reckoned from October 14, 1977 when judgment Exhibit P4 was rendered. February 25, 1973 when Sher Singh died is the date later than April 11, 1969 when the respondents obtained decree from the learned Additional District Judge, Gurgaon. Therefore even if period of limitation is reckoned from February 25,1973, that period of three years for filing a declaratory suit came to an end long before November 3, 1977 when the suit was filed by the respondents. Hence, the suit filed by the respondents was clearly barred by limitation and on that score, deserved to be dismissed. The view taken by the Courts below is erroneous in the eye of law and cannot be allowed to sustain.

Resultantly, the appeal is allowed. Judgment and decree under appeal are set aside and the suit of the plaintiff-respondents is dismissed. The respondents have not put in appearance. Therefore, the parties are left to bear their own costs.