RAMESH KUMAR AND OTHERS vs MADAN MOHAN AND ANOTHER

Defendants are in regular second appeal, against the judgment of reversal dated 31.5.2010 passed by the learned Additional District Judge, whereby judgment and decree dated 25.8.2009 of the learned trial court, dismissing the suit for declaration with consequential relief of joint possession, were set aside, allowing the first appeal of the plaintiff.

Briefly put, facts of the case necessary for disposal of the present appeal, as recorded by the learned trial court in para 1 of its judgment, are that present suit for declaration with consequential relief of joint possession filed by plaintiff against the defendants, inter alia, on the allegations that there was a land mentioned in para No.1 of the plaint, which was entered in the name of Chhanoo son of Parshadi Ram to the extent of 1/2 share which comes to 83 kanal 13 marla as per jamabandi for the year 1984-85. The land mentioned in para No.1 of the plaint was Joint Hindu Coparcenary property of plaintiff, defendant No.2 and their father Chhannoo in equal shares, because this land was inherited by Chhannoo from his father Parshadi Ram and plaintiff, alongwith defendant No.2, had right in it since their birth. In this way, the share of (Chhannoo was 1/3 in the land mentioned in para No.1 of the plaint. Mutation No. 1265, regarding succession of the land mentioned in para No.1 of the plaint, was sanctioned in favour of plaintiff and defendants No.1 and 2 in equal share on 14.9.1989 as per order of Collector, Jhajjar, dated 26.4.89 of whole of the land mentioned in para No.1 of the land whereas total share of Chhannoo was 1/6th and not 1/2 share. So the mutation of 1/6th share should have been sanctioned in favour of plaintiff and defendants No.1 and 2 in equal share i.e. mutation of 1/18th share should have been sanctioned in favour of the plaintiff, defendant No.1 and defendant No.2 each. So, share of plaintiff was 1/6 + 1/18 and in the same way, share of defendant No.2 was also 1/6 + 1/18 and share of defendant No.1 was only 1/18 share whereas an illegal mutation of 1/6 share was sanctioned in favour of defendant No.1. The said mutation was illegal, null and void and not binding upon the right of plaintiff to the extent of 2/18 share. Defendants No. 3 to 7 claimed that they were owners in possession of 1/6 share of the land mentioned in para No.1 of the plaint vide civil court decree dated 22.9.92, allegedly suffered by defendant No.1 in favour of defendants No.3 to 7. The said decree was also illegal, null and void and not binding upon the right of plaintiff because defendant No. 1 was only entitled to alienate 1/18 share of the land mentioned in para No.1 of the plaint and the said decree was illegal to the extent of 2/18 share and mutation of that decree was illegal to the extent of 2/18 share and mutation of that decree bearing No. 1340 dated 5.12.1992 was also illegal.

As per Section 6 of Hindu Succession Act, plaintiff became owner in possession of 4/18 share of the land mentioned in para No.1 of the plaint after the death of Chhannoo who died in the year of 1988 and since the death of Chhanoo, plaintiff was owner in possession of 4/18 share of the land mentioned in para No.1 of the plaint and out of the said share, plaintiff sold 1/6 share to different persons and plaintiff was still owner in possession of 1/18 share of land mentioned in para No.1 of the plaint. Defendant No.1 never cultivated even a single inch of the land up to date since the time of death of the father of the plaintiff. In fact, plaintiff and defendant No.2 were in cultivating possession of the land mentioned in para No.1 of the plaintiff in equal shares but one week back from today, defendant No.1 in collusion with remaining defendants tried to dispossess the plaintiff from the suit land. Defendants were asked many times by plaintiff that they should admit that share of plaintiff was 4/18 share in the suit land mentioned in para No.1 of the plaint and the share of defendant No.1 was just 1/18 share in the suit land and after alienating, 1/6 share from the suit land. Plaintiff was still owner in possession of 1/18 share of the suit land and entries of 2/18 share in the name of defendants Nos. 3 to 7 were illegal, null and void and not binding upon the rights of plaintiff. They were further requested not to interfere with peaceful joint possession of plaintiff over the suit land but defendants have refused to adhere the request of plaintiff on 22.6.2004.

Having been served in the suit, defendants No.2, 3, 5, 6 and 7 appeared and filed their written statement, raising more than one preliminary objections. Defendants No.1 and 4 also appeared but did not file written statement. However, when none of the defendants appeared, all of them were proceeded against ex parte, vide order dated 30.8.2008. Plaintiff led his ex parte evidence. After hearing learned counsel for the plaintiff and going through the evidence brought on record by the plaintiff, learned trial court came to the conclusion that plaintiff has failed to prove his case. He could not prove the suit property as ancestral. Plaintiff also failed to prove the civil court decree dated 22.9.1992 to be illegal, null and void. Similarly, he could not prove the impugned mutation to be null and void. Accordingly, his suit was dismissed by the learned trial court vide its judgment and decree dated 25.8.2009.

Feeling aggrieved, plaintiff filed his first appeal, which was allowed by the learned Additional District Judge, vide his impugned judgment and decree dated 31.5.2010. Defendant No.2-Amar Singh son of Chhannoo, who was father of defendants No.3 to 7-appellants herein, died and defendant No.1- Smt. Shammo daughter of Chhannoo has been inadvertently impleaded as respondent No.2, because she is actually a proforma respondent. Respondent No.1 is the only contesting respondent.

Learned counsel for the appellants submits that plaintiff-respondent No.1 miserably failed to prove the suit property to be ancestral property in the hands of Chhannoo-common ancestor-predecessor-in-interest of the parties to this litigation. He refers to mutation Ex.P5 (in Urdu language) at page 19 of the Lower Court Record (''LCR'') and its Hindi version (Ex.P5/H) is at page 20 of the LCR. Then he referred to jamabandi Ex.P6 (in Urdu language) at page 21 of the LCR and Hindi version of this jamabandi for the year 1920-21 is Ex. P6/H at page 22 of the LCR. While placing heavy reliance on this jamabandi Ex. P6/H for the year 1920-21, learned counsel for the appellants contended that the land measuring 8K 2M only was inherited by Chhannoo and Chhotan sons of Parshadi Ram.

He also refers to jamabandi Ex.P-2 for the year 1984-85, wherein the land measuring 167K 6M was recorded in the name of Chhannoo and Chhotan sons of Parshadi Ram in equal shares. In jamabandi Ex.P3 for the year 1999-2000, land was recorded as 144K 8M. Mutation dated 27.11.1988 is available as Ex.P-1 at page 14 of LCR. Placing reliance on these revenue documents, learned counsel for the appellants contended that the best evidence available with the plaintiff, to prove the suit property as ancestral property in the hands of Chhanoo was "Intkhab (excerpt), Khatoni Istemal, Khatoni Paimaish and Naksha Haq-dar-war". However, plaintiff did not produce any of these documents on record for the reasons best known to him and in the absence of these documents, there was not even the remotest scope either for the plaintiff to prove the suit property as ancestral property or for the learned first appellate court to hold it to be ancestral property. In this view of the matter, learned trial court rightly dismissed the suit of the plaintiff on this count but the learned first appellate court misdirected itself, while completely misreading the evidence.

Learned counsel for the appellants contended that there was no connecting evidence between jamabandi Ex P6/H for the year 1920-21, wherein the land was measuring 8K 2M only, and the jamabandi Ex.P2 for the year 1984-85, recording land as 167K 6M. It was for the plaintiff to explain the missing link but he did not do so. He submits that mere admission by some of the defendants in their written statement was not sufficient to hold the suit property as ancestral in the hands of Chhannoo in the absence of relevant evidence on record.

In support of his contentions, learned counsel for the appellants places reliance on the following judgments of this Court:- Avtar Singh Vs. Swaran Singh and others,2007 2 PunLJ 669.

Gurjant Singh Major and others Vs. Surjit Singh and others, 2004 3 RCR(civ) 93.

Matu Ram (deceased) through LRs Vs. Kartar Singh and others, 2004 137 PunLR 569.

Gulab Singh Vs. Mam Chand and others, 2009 2 RCR(civ) 428.

Secondly, learned counsel for the appellants, while placing reliance on Article 58 of the Limitation Act, 1963, submits that since it was a suit for declaration and mutation dated 27.11.1988 (Ex.P-1) as well as civil court decree dated 22.9.1992 were challenged in the suit filed on 23.7.2004, it was hopelessly time barred. Since the issue of limitation, as per the peculiar facts and circumstances of the case in hand, is pure question of law, submits learned counsel for the appellants, it can be raised at any stage of the litigation, including before this Court in the present appeal. In support of his contentions on the issue of limitation, learned counsel for the appellants places reliance on the judgment of the Hon''ble Supreme Court in Shyam Lal @ Kuldeep Vs. Sanjeev Kumar and others, 2009 8 JT 108 and a Division Bench of this Court in Smt. Sewti Devi Vs. Kanti Prashad and others, 1973 AIR(P&H) 126.

Third argument raised by the learned counsel for the appellants was that, suit in the present form was not even maintainable, because mutation dated 27.11.1988 (Ex.P-1) was a fact known to the plaintiff, he being the beneficiary thereof. In case, he was intending to challenge the validity of this mutation, he ought to have approached the competent authority to challenge this mutation but he did not do so, for the reasons best known to him. The learned civil court would not sit in appeal over the order passed by the revenue authority sanctioning the mutation, because the Punjab Land Revenue Act was a complete Code in itself, providing effective remedy to a party who might be feeling aggrieved against the mutation. In support of this submission, learned counsel for the appellants places reliance on the judgment of this Court in Moman Ram Vs. Ranjeet Kaur and others, 2015 1 RCR(civ) 668. He submits that since the respective rights of the parties were crystalised at the time of sanctioning the mutation dated 27.11.1988 (Ex.P1) and again on 22.9.1992 when the civil court decree was passed in favour of the appellants, coupled with the fact that plaintiff had admittedly sold his entire 1/6th share, his suit was not only hopelessly time barred but was not even maintainable, besides the fact that plaintiff did not make even an effort to prove the suit property as ancestral in the hands of Chhannoo.

He concluded by submitting that since the learned first appellate court has completely misread and misunderstood true facts of the case as well as evidence available on record, the impugned judgment is patently illegal and has caused a manifest injustice to the appellants. He prays for setting aside the impugned judgment and decree of the learned first appellate court, by allowing the present appeal.

Per contra, learned counsel for the plaintiff-respondent No.1, while vehemently opposing the arguments raised by learned counsel for the appellants, submits that once defendants No. 2, 3, 5, 6 and 7 had admitted the suit property to be ancestral in the hands of Chhannoo, nothing was left to be proved by the plaintiff any further, because admission is best evidence. He further submits that since the interest of defendants No.1 and 4 was also common with other defendants, who filed their written statements, admission on the part of defendants No.2, 3 5, 6 and 7 would be an admission on the part of defendant No.1 and 4, as well. He submits that since it was not in dispute that defendants did not contest the suit, as they were proceeded against ex parte, learned trial court ought to have decreed the suit of the plaintiff. Since the learned trial court failed to appreciate the true facts of the case, learned first appellate court rightly accepted the first appeal of the plaintiff and the impugned judgment deserves to be upheld.

On the issue of limitation, learned counsel for the plaintiff-respondent submits that once the issue of limitation was neither raised in the written statement, nor before any of the courts below, it cannot be raised for the first time in the regular second appeal, particularly when appellants have not raised this issue of limitation even in their grounds of appeal. He also submits that it was not a simple suit for declaration but also suit for joint possession and that too, on the basis of title, because of which law of limitation would not be attracted against the plaintiff. Replying to the third argument raised by learned counsel for the appellants, learned counsel for the respondent-plaintiff submits that since the suit was filed in the year 2004, the revenue court would have no jurisdiction to hear the appeal against the mutation at that stage and only the learned civil court would have the jurisdiction. The suit was very much maintainable in the present form. He concluded by submitting that since the learned first appellate court has considered each and every relevant aspect of the matter in the correct perspective, neither the impugned judgment suffers from any patent illegality or perversity, nor any question of law is involved in the present appeal. He prays for dismissal of the present appeal.

Having heard learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, following substantial questions of law arise for consideration of this Court:- I) Whether the learned first appellate court has completely misread and misunderstood the evidence available on record?

II) Whether the admission made by some of the defendants in their written statements was sufficient to hold the suit property as ancestral property in the hands of Chhannoo, despite the non availability of relevant evidence on record?

III) Whether the suit for declaration filed by the plaintiff-respondent was hopelessly time barred and question of limitation, being a pure question of law in view of the fact situation of the case in hand, could have been raised by the appellants for the first time before this Court?

After giving anxious consideration to the contentions raised on behalf of both the parties and going through the evidence available on record as well as the relevant judgments of the Hon''ble Supreme Court and this Court, present appeal deserves to be accepted. To say so, reasons are more than one, which are being recorded hereinafter.

Before proceeding further, following pedigree table would be the first guiding factor:- [VERNACULAR IMAGE OMITTED]

It is a matter of record and not in dispute that after the death of Chhannoo in the year 1988, mutation of inheritance came to be entered and sanctioned in favour of all the three children of Chhannoo on 27.11.1988 (Ex.P1), in equal shares to the extent of 1/3rd share each, in the half share of Chhannoo in the land which he inherited from his father-Parshadi Ram, meaning thereby plaintiff, defendant No.1 and defendant No.2 would have 1/6th share each. Admittedly, plaintiff had sold his 1/6th share, which he inherited from his father-Chhannoo. However, plaintiff was claiming 1/18th share and that is why, he challenged this mutation Ex.P1 dated 27.11.1988.

It is pertinent to note here that Smt. Shammo-defendant No.1, who was daughter of Chhannoo, suffered civil court decree dated 22.9.1992 in favour of defendants No.3 to 7 herein, sons of defendant No.2-Amar Singh. It was the pleaded case of the plaintiff that as per the jamabandi for the year 1984- 85, Chhannoo would have 1/3rd share in the land, because of which, share of the plaintiff ought to have been as claimed in the suit. It was further pleaded that share of defendant No.1 would be only 1/18th and as a consequence thereof, civil court decree dated 22.9.1992 in favour of defendants No.3 to 7 was null and void. Thus, entire case of the plaintiff was revolving around the basic fact that suit property was ancestral property in the hands of Chhannoo or not.

Now, crucial point that arises for consideration of this Court is, whether admission by some of the defendants in their written statement, admitting the suit property to be ancestral property in the hands of Chhannoo, would itself be sufficient to hold the property as ancestral property or plaintiff was under legal obligation to prove the suit property to be ancestral property in the hands of Chhannoo, by leading cogent and convincing evidence.

The contentions raised by learned counsel for the plaintiff-respondent that admission made by some of the defendants would be sufficient to hold the suit property to be ancestral, though seems to be attractive at the first blush, but on deeper consideration of the matter, said contention has been found wholly misplaced because of which the argument raised by the learned counsel for the appellants deserves to be accepted. It is so said, because once the defendants were proceeded against ex parte, it would be obligatory not only on the part of the plaintiff to prove his case by leading cogent and convincing evidence but also for the learned courts to be more careful and cautious, while examining, considering and appreciating true facts of the case as well as evidence required to prove the pleaded case of the plaintiff.

In the present case, plaintiff has withheld the best evidence available in the form of abovesaid relevant revenue record, including the "Intkhab (excerpt of jamabandies), Khatoni Istemal, Khatoni Paimaish and Naksha Haq-dar-war". In the absence of the abovesaid relevant evidence, learned trial court rightly held that plaintiff has failed to prove the suit property as ancestral property in the hands of Chhannoo. However, learned first appellate court misdirected itself, while completely misreading and misunderstanding the true facts of the case as well as evidence available on record, before passing the impugned judgment and decree, which have been found suffering from patent illegality and the same cannot be sustained.

It is the settled proposition of law that onus would be on the plaintiff to prove his case by leading his evidence in affirmative. Plaintiff must stand on his own legs instead of making efforts to prove his case by referring to the alleged weakness in the case of the defendants. Initial onus is always on the plaintiff. It is also the settled proposition of law that presumption is in favour of the land being non ancestral, until and unless it is proved to be ancestral. In the present case, plaintiff has miserably failed to rebut this presumption, because he did not lead sufficient evidence before the learned trial court, despite its availability.

Interestingly, although the plaintiff has challenged the validity of civil court decree dated 22.9.1992, yet he did not even produce the copy thereof on record before the learned trial court, while leading his evidence. It seems that plaintiff was expecting too much from the learned trial court, probably for the reason that defendants had been proceeded against ex parte. Plaintiff was hopeful that since the defendants were not opposing his suit, it would be automatically decreed by the learned trial court, however, he was under very wrong impression. Being the plaintiff, it was his legal obligation to prove his pleaded case by leading cogent and convincing evidence but he failed to do so. Even admission by some of the defendants was not sufficient to hold the suit property as ancestral property. It was so held by this Court in Avtar Singh''s case and Gulab Singh''s case , relied upon by learned counsel for the appellants.

In addition to the above, the view that has been taken by this Court also finds support from the judgment of the Hon''ble Supreme Court in Nagubai Ammal and others Vs. B. Shama Rao and others, 1956 AIR(SC) 593, wherein it was held that an admission is not conclusive as to the matters stated therein but it is not only a piece of evidence.

Again, the Hon''ble Supreme Court in K.S. Srinivasan Vs. Union of India, 1958 AIR(SC) 419, held that admission is not conclusive proof of the matter admitted, though it may, in certain circumstances, operate as estoppel. Similarly, in Narinder Nath Kapoor Vs. Prem Nath Khanna and others, 2009 4 RCR(civ) 515, the Hon''ble Supreme Court held that admission is not conclusive proof but only a piece of evidence. What weight should be attached to such an admission would depend on the circumstances of each case.

Hon''Ble the Supreme Court in State Bank of India Vs. Ghamandi Ram (dead) by his legal representative Gurbux Rai, 1969 AIR(SC) 1330, Surjit Lal Chhabda Vs. Commissioner of Income-tax, Bombay, 1976 AIR(SC) 109 and this Court in Surjit Singh and others Vs. Gurmit Singh and others, 2010 159 PunLR 122; Jagdev Singh and another Vs. Major Singh and others,2014 82 RCR(civ) 214; Hawa Singh Vs. Daya Nand and others,2010 21 RCR(civ) 918 and Gurmail Singh Vs. Rajbir Singh and another, 2014 4 RCR(civ) 397, held that any property, unless and until it is duly proved by leading cogent evidence as ancestral property, would be presumed to be non ancestral property. It was categorically held by this Court in Matu Ram''s case , that it is well settled that even an admission by a party may not be enough to hold the property to be ancestral and coparcenary, as to prove nature of the property. The court goes only by the evidence that may come on the record of the case.

Following the law laid down by Hon''ble the Supreme Court as well as this Court in the cases referred to hereinabove, this Court feels no hesitation to conclude that plaintiff-respondent has miserably failed to prove the suit property as ancestral property in the hands of his father namely Chhannoo. It is so said, because the plaintiff did not bring sufficient evidence on record, despite its availability and that too, for no good reasons. Since the learned first appellate court has found admission made by some of the defendants to be sufficient to hold the suit property as ancestral property, the impugned judgment and decree have resulted in miscarriage of justice and the same cannot be upheld, for this reason also.

In this view of the matter, answer to the first two substantial questions of law, posed hereinabove, is and has to be in favour of the appellants and against the respondent-plaintiff, thus, the same are answered accordingly.

Coming to the third question of law with regard to the question of limitation, it being a pure question of law in view of the peculiar fact situation obtaining on record of the present case, this Court is of the considered view that learned counsel for the appellants was justified to raise the issue of limitation during the course of arguments, for the first time before this Court. As noticed hereinabove, it is a matter of record that plaintiff has filed the present suit for declaration to lay challenge to the mutation dated 27.11.1988 as well as civil court decree dated 22.9.1992.

It is neither pleaded nor argued case on behalf of the plaintiff-respondent that mutation dated 27.11.1988 was not in his knowledge. In fact, he was also the beneficiary of this very mutation, which would make it crystal clear that cause of action qua this mutation, if any, had accrued in favour of the plaintiff on 27.11.1988 itself. Cause of action, if any, again accrued in favour of the plaintiff on 22.9.1992 when defendant No.1 Smt. Shammo suffered the civil court decree in favour of defendants No. 3 to 7, drawing her title from the abovesiad mutation dated 27.11.1988 (ExP-2). Plaintiff sought to challenge the validity of the mutation Ex.P-1 as well as civil court decree dated 22.9.1992 in his suit for declaration.

It also goes without saying that right to sue, if any, accrued in favour of the plaintiff on 27.11.1988 and then on 22.9.1992. Limitation for a suit for declaration, as provided under Article 58 of the Limitation Act, is three years. Again, under Article 113 of the Limitation Act, limitation for any suit for which no period of limitation is provided elsewhere in the schedule, is also three years from the date when right to sue accrues. In the present case, once defendants had been proceeded against ex-parte, learned trial court should have been more cautious, while deciding the suit of the plaintiff by ex parte judgment and decree. However, neither learned trial court nor learned first appellate court adverted to this material aspect of the matter, while passing their respective judgments and decrees.

Although learned trial court dismissed the suit of the plaintiff on every ground, yet issue of limitation was not considered, which ought to have been considered. It was so held by the Hon''ble Supreme Court in Union of India Vs. British India Corporation Limited and others, 2003 9 SCC 505. Again, in Pritam Singh Vs. State of Haryana, 1971 1 SCC 653, Hon''ble the Supreme Court held that point being pure question of law, not involving any further investigation of facts, can be raised even at the appellate stage. Similar view was taken by the Hon''ble Supreme Court as well as this Court in Narne Rama Murty Vs. Ravula Somasundaram and others, 2005 3 RCR(civ) 824, State of Tripura and others Vs. Arbinda Chakraborty and others, 2014 AIR(SC) 3570, Vasant Ramchandara Deshpande Vs. State of Maharashtra, 1997 11 SCC 305, Harish Chandra Singh (Dead) By Lrs Vs. Dhananjay Kumar, 2013 1 PLJR 311, Shyam Lal'' case and Smt. Sewti Devi''s case .

In view of what has been discussed herinabove and respectfully following the law laid down by Hon''ble the Supreme Court as well as this Court in the cases aforementioned, it is unhesitatingly held that since the question of limitation, as per peculiar facts and circumstances of the case in hand, was a pure question of law which goes to the root of the cause, appellants were entitled to raise the issue of limitation for the first time even before this Court. In this regard, contention raised by learned counsel for the respondent has not been found worth acceptance.

On the other hand, merit has been found in the argument raised by learned counsel for the appellants and the same deserves to be accepted. Accordingly, third substantial question of law, i.e. issue of limitation, is also answered in favour of the appellants and against the respondent-plaintiff. It is held that suit of the plaintiff, being suit for declaration with consequential relief of joint possession, was hopelessly time barred.

In view of the abovesaid discussion on three substantial questions of law, third argument raised by learned counsel for the appellant has become insignificant. Accordingly, it is held that neither plaintiff could prove the suit property as ancestral property in the hands of his father-Chhannoo, nor his suit was within time, because of which, it was bound to fail on both these counts. Since the learned first appellate court fell in serious error of law, while passing the impugned judgment and decree, the same cannot be sustained for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned judgment and decree passed by the learned first appellate court have been found suffering from patent illegality, as noticed hereinabove, it cannot be sustained. Accordingly, impugned judgment and decree dated 31.5.2010 passed by the learned Additional District Judge are hereby set aside. Judgment and decree dated 25.8.2009 of the learned trial court are restored. Appeal deserves to be accepted.

Resultantly, with the abovesaid observations made, instant regular second appeal stands allowed, however, with no order as to costs.