Om Parkash vs Sarjo

Rajive Bhalla, J.—The appellants challenge judgments and decrees dated 29.09.1987 and 16.08.1989, passed by the Additional Senior Sub Judge, Rohtak and the Additional District Judge-II, Rohtak, respectively, dismissing their suit and their appeal. The facts of the case, in brief, are that the appellants filed a suit for possession, essentially based upon a plea that registered gift deed, dated 11.04.1969, executed by Kanhiya Lal in favour of Sarjo wife of Ganga Dutt, is null and void, as land, subject matter of the gift deed is ancestral property and, therefore, the gift deed violates an existing custom.

Sarjo and other defendants, put in appearance, admitted that the land is ancestral but pleaded that the suit was grossly barred by limitation having been filed on 06.03.1982 to challenge registered gift deed dated 11.04.1969. It was also pleaded that Kanhiya had no child and his wife had pre-deceased him. He was living with Ganga Dutt husband of Sarjo. Sarjo served Kanhiya to the best of her abilities. Kanhiya, therefore, executed a gift deed of his property in favour of Sarjo. The trial Court framed the following issues:-

"1. Whether the plaint has been properly valued for the purposes of court fee and jurisdiction? OPP

Whether the property in suit is ancestral of the parties? OPP

Whether the decision in the previous suit ''Prithvi Singh S/o. Simrat v. Smt. Sarjo and others'' operate as res judicata ? OPD

Whether Kanhiya made a gift of the disputed property in favour of Smt. Sarjo-defendant? OPD

Whether the gift made by Shri Kanhiya deceased is against custom? OPP

Whether the plaintiff has locus standi to challenge the gift made by Sh. Kanhiya? OPP

Whether the suit is within time? OPP

Relief."

After considering the pleadings and evidence adduced, the trial Court dismissed the suit by holding that it is barred by time, the appellants have not established their right in custom to challenge the gift deed and the suit is barred by res-judicata.

Aggrieved by this order, the appellants filed an appeal. The Additional District Judge-II, Rohtak, vide order dated 16.08.1989, affirmed the order passed by the trial Court and as a consequence, dismissed the appeal.

Counsel for the appellants submits that the finding that the suit is barred by limitation, is incorrect. The appellants are the sons of Prithvi (deceased) who but for the gift deed would have succeeded to the property of Kanhiya. The appellants had no knowledge about the gift deed and, therefore, the suit is within limitation. The Courts below have drawn an incorrect inference that the appellants had knowledge of the gift deed by relying upon earlier suits filed by their father. It is further submitted that provisions of Punjab Limitation (Custom) Act, 1920 (hereinafter referred to the "1920 Act") do not apply in preference to provisions of the Limitation Act, 1963 and even otherwise, dismissal of an earlier suit filed by their father-Prithvi, in default or on account of his death, cannot be considered to attribute knowledge of the appellants. It is further submitted that the Courts below have wrongly held that dismissal of the earlier suits filed by the appellants'' father-Prithvi operate as res-judicata. The earlier suits were dismissed for non-prosecution. It is further argued that the appellants have a right in custom to challenge alienation by gift. It is contended that the following substantial questions of law arise for adjudication-

Whether dismissal of the earlier suits for non-prosecution operates as res-judicata in a subsequent suit filed by his children-appellants, claiming the same relief?

Whether provisions of the 1920 Act, apply to the parties for challenging gift deed made by Kanhiya in favour of Sarjo?

Whether the Courts below have not erred in holding that the appellants had knowledge of the gift deed made by Kanhiya in favour of Sarjo, thereby rendering the suit barred by limitation?

Counsel for the respondents submits that the gift deed was executed on 11.04.1969 but the suit was filed on 06.03.1982. This apart, the appellants'' father filed two suits challenging the gift deed which were dismissed for non-prosecution. The suit was rightly dismissed as time barred.

I have heard counsel for the parties and find no reason to grant any relief to the appellants.

The findings recorded by the first appellate Court that dismissal of the earlier suits for non-prosecution and on account of death of Prithvi, operates as res-judicata, in the subsequent suit filed by his sons (the appellants), is undoubtedly incorrect. It is a settled position in law that dismissal of a suit for non-prosecution or for death of a plaintiff does not operate as res-judicata in a subsequent suit filed by his children even if it relates to the same controversy. The first question of law is, therefore, answered accordingly. The answer to this question, however, does not entitle the appellants to any relief as their suit was hopelessly barred by limitation.

As regards the plea that the Limitation Act would prevail over the 1920 Act, it merits rejection. If a statute provides a period of limitation, the period so prescribed would prevail over the period of limitation prescribed by the Limitation Act, 1963. A reference in this regard may be made to Section 29 of the Limitation Act, 1963. The provisions of 1920 Act which provide a period of limitation would necessarily apply where a person approaches a Court to challenge a gift deed by asserting that it is violative of a custom. The second question is answered accordingly.

The third question that as the appellants had no knowledge of the gift deed made by Kanhiya in favour of Sarjo, the finding that the suit is barred by limitation, is factually incorrect. Both Courts below have recorded concurrent findings that the appellants were aware of the gift deed, particularly, as their father had filed two civil suits and had been pursuing the matter. The inference drawn by the Courts below cannot be said to be perverse, arbitrary or vitiated for an error of jurisdiction or of law. The gift deed was executed on 11.04.1969 whereas the suit was filed on 06.03.1982. As regards the plea of a right to challenge the gift deed on the basis of a custom, suffice it to say that no such custom had been proved. The judgment pressed into service by counsel for the appellants in Rati Ram and Another Vs. Shiv Charan and Others, relates to Gaur Brahmins whereas the appellants are Jats. In view of what has been recorded hereinabove, the appeal is dismissed but with no order as to costs.