Saudagar Singh vs Harnam Kaur and Others

D.V. Sehgal, J.—This appeal by the Plaintiff-Appellant is directed against the judgment and decree dated 27.7.1977 passed by the learned Additional District Judge, Faridkot (Camp at Bhatinda) whereby he allowed the appeal of Harnam Kaur Defendant against the judgment and decree dated 26.2.1974 of the learned Sub Judge II Ird Class (A) Bhatinda decreeing the suit of the Plaintiff Appellants for declaration.

The Appellants had filed a suit on 6.7.1971 praying for grant of a decree of declaration to the effect that they are owners in possession to the extent of 1/2 share of the land measuring 425 Kanals 16 Marlas situated in village Chak Feteh Singhwala as described therein and that Harnam Kaur had no right, title or interest in the same. It was alleged that the whole of the land in dispute was owned in equal shares by Ghanda Singh and Santa Singh sons of Gurdit Singh. Ganda Singh died in the year 1924 leaving behind Harnam Kaur as his widow. The Appellants are the sons and daughters of Santa Singh. Harnam Kaur performed a Karawa marriage with one Hazura Singh son of Sarup Singh resident of village Mangawala about 45 years before the institution of the suit. Since Ganda Singh and the Appellants were governed by the custom, Harnam Kaur forfeited all her rights in the suit property coming to her from Ganda Singh. It was further alleged that the property was ancestral qua the Appellants and that they alone were the rightful owners of the same and Harnam Kaur had nothing to do with it. They further claimed themselves to be in actual possession of the suit land and thus filed a suit for declaration of their title without seeking any consequential relief. It was further alleged that Harnam Kaur had herself admitted the fact of a Karewa marriage with one Hazura Singh vide affidavit dated 30th October, 1967, Exhibit P.W. 5/2. Harnam Kaur denied all the allegations She admitted that she is the widow of Ganda Singh but emphatically denied having entered into any karewa marriage with one Hazura Singh. She further asserted that she has been continuing as owner in possession of one half share of the suit land all along and as such the suit filed by the Appellants for a simple declaration is not maintainable. She also raised legal objections to the effect that the suit is barred by limitation and the Appellants had no locus standi to file the suit. On the pleadings of the parties, the learned trial Court framed the following issues:

Whether the suit is within limitation ? O. P. P.

2 Whether the Plaintiffs have no locus standi to file the present suit? O. P. D.

Whether the suit in the present form is not maintainable? O. P. D.

Whether Harnam Kaur contracted a Karewa marriage with Hazura Singh and thus forfeited her rights in the property of Ganda Singh deceased? O. P. P.

Whether the suit property is ancestral? O. P P.

Whether the Plaintiffs and Ganda Singh deceased are governed by custom ? O. P. P.

Relief.

As has already been mentioned above, the learned trial Court decreed the suit of the appallants, it returned the findings on the different issues either in favour of the Appellants or against Harnam Kaur, She, therefore, preferred an appeal which has been accepted by the learned Additional District Judge vide judgment and decree under appeal. It has been held therein that the suit filed by the Appellants was barred by limitation. It has also been found that Harnam Kaur was in possession of one half of the suit land, the suit for mere declaration without asking for a consequential relief could not be maintained. It was further held that the Appellant had failed to prove that Harnam Kaur had contracted a Karewa marriage with Hazura Singh and for that reasons had forfeited her rights in the property of Ganda Singh deceased The findings of the trial court on issue Nos. 2, 5 and 6 were maintained.

I have heard the learned Counsel for the parties. The first submission made by the learned Counsel for the Appellant is that Harnam Kaur died on 4.6.1977 during the pendency of the appeal before the learned Additional District Judge. Her legal representatives were not brought on the record and as such the appeal abated. The decree passed by the learned first Appellate Court in her favour on 27.7.1977 is, therefore, a nullity. He urged that the only course open in this situation is that the decree under appeal should be set aside and the case should be remanded to the first Appellate Court for considering the question whether or not the abatement should be set aside and whether the legal representative of Harnam Kaur should be allowed to be brought on the record and then it should decide the appeal on merits. To canvass this proposition, the learned Counsel has placed reliance on Amarsangji Indrasangji Vs. Desai Umed, ., Ram Saran Ahir and Others Vs. Prithvi Nath Singh and Another, State of Gujarat v. Chandramani Shanker Jadhavial Sanghvi A. I. R. 1963 Guj 243. Jiviben Lavji Raganath Vs. Jadavji Devshanker and Others,

I am of the view that this contention of the learned Counsel has no force. Harnam Kaur died on 4.6.1977. Order 22 Rule 3 read with Rule 11, CPC Code, and Article 120 of the Schedule to the Limitation Act 1963 provide that where a sole surviving Appellant dies and the right to sue survives, the court on an application made in that behalf shall cause the legal representatives of the deceased-Appellant to be made a party and shall proceed with the appeal. Where within the period of 90 days no application is made for bringing on record the legal representatives of the Appellant, the appeal shall abate. Thus the abatement of the appeal was to take place on the expiry of the period of 90 days from 4.6.1977. However, much before that the appeal was heard and decided by the learned Additional District Judge on 27.7.1977. All the precedents cited by the learned Counsel for the Appellant pertain to appeals or suits which had abated on expiry of the period of limitation and the legal representatives of the deceased Appellant having not been brought on the record. The present case is, therefore, clearly distinguishable. In fact, this matter stood already concluded by an order dated September, 8, 1981 by J. M. Tandon, J. (as he then was) while deciding Civil Misc. Nos. 1183-C of 1981, 2262-C of 1978 and 2031-C of 1978. The following observations from the said order are relevant:

Harnam Kaur had died on June 4, 1977, whereas the Additional District Judge, Bhatinda, accepted her appeal on July 27, 1977. Under these circumstances, the appeal decided by the Additional District Judge, Bhatinda, in favour of Harnam Singh cannot be taken having abated.

Vide this very order, the learned Judge allowed the present Respondents to be brought on the record as legal representatives of Harnam Kaur, Defendant. I, therefore, reject this contention. Then next the question which I would take up for decision is whether the suit for declaration simpliciter filed by the Appellant was maintainable. While dilating on this issue, it would be of help to set out some of the undisputed facts borne out from the record of rights.

The land in suit was admittedly owned by Gurdit Singh. He had four sons from his wife Smt. Saddi, namely, Ganda Singh, Santa Singh, Arjan Singh and Sunder Singh. Arjan Singh and Sunder Singh pre-deceased Gurdit Singh. When Gurdit died in the year 1918, mutation Exhibit PX. regarding inheritance of his estate was sanctioned in favour of his two sons Ganda Singh and Santa Singh and his widow Smt. Saddi in equal shares i. e, 1/3rd share each. Ganda Singh died in the year ,924 and on his death mutation Exhibit D. W. 9 was sanctioned on 22.9.1924 in favour of his widow Harnam Kaur. The revenue record after that shows Harnam Kaur. Santa Singh and Smt. Saddi as owners in possession of the suit land in equal shares. Smt. Saddi died on 9.2.1942, Mutation Exhibit D W. 9/A in repeat of her inheritance was sanctioned on 1.4.1942. Her estate was inherited in equal shares by Harnam Kaur and Santa Singh. Jamabandi for the year 1941-42 shows Harnam Singh as owners in possession in equal shares of the suit land. It appears that Santa Singh died. Later, Jamabandi for the year 1945-46, Exhibit D. W. B/E, shows that his widow Kishno and his two sons Nazar Singh and Saudagar Singh Appellants are shown owners in possession of 1/2 share of the suit land while the other 1/2 share is recorded to be in the ownership and possession of Harnam Kaur. This position continued until the Jamabandi for the year 1945-46, Exhibit D. W. 8/F. It appears, that subsequent thereto Kishno had died. Therefore, in the Jamabandi for the year 1961-62, Exhibit D. W. 8/G, while Harnam Kaur was recorded as owner in possession of 1/2 share of the suit land, the Appellants Nazar Singh, Santa Singh and Mukhtiar Kaur (daughter of Santa Singh) are recorded as owners of 4/18th, 4/18th and 1/18th share in the suit land which means that the share of Smt. Kishno was inherited equally by the Appellants. This very position with regard to ownership and possession-of the suit land is home out from the Jamabandi for the year 1964-65, Exhibit D. W. 8/H and Jamabandi for the year 1969-70, Exhibit D. W. 8/J. However, in the Khasra Girda-wari entry for the crop harvest 1970-71, Exhibit D. W 8/K, the name of Harnam Kaur was omitted. She was vigilant enough to assert her right and applied for correction of wrong entry in the Khasra Girdawari. Her application was allowed by the order of the Collector, dated 6.12.1972, Exhibit D. W. 9/6. These entries in the record of rights are presumed to be true and correct unless these are rebutted by cogent evidence which is altogether missing from the record. In fact, as many as five witnesses have come forward to corroborate that. Harnam Kaur had all along been owner in possession of the suit land They are Mota Singh, D. W. 3, Khazan Singh, D. W. 4, Pritam Singh, D. W. 6, Dalbara Singh, D. W. 7 and Harnam Kaur, D. W. 9. Their depositions that Harnam Kaur in owner in possession of the suit land all along was not questioned in the course of the cross-examination. The bare statement of D. W. 9 and some of the witnesses produced by him that the Appellants are in exclusive possession of the entire suit land has rightly been rejected by the learned Additional District Judge. Once it is held that Harnam Kaur has been in possession of the suit land, suit for declaration simpliciter filed by the Appellant without asking for a consequential relief of possession would not be maintainable as laid down by the proviso to Section 34 of the Specific Relief Act, 1963. I, therefore, affirm the finding of the learned Additional District Judge on Issue No. 3.

As a corollary to the above, it would be expedient to go into the question whether the suit filed by the Appellants on 6.7.1971 was within limitation, Article 58 of the Limitation Act 1963 prescribes the period of limitation for a suit for declaration in the following terms:

58.

To obtain any other declaration

Three years

When the right to use first accrues

The case of the Appellants is that Harnam Kaur having entered into a karewa marriage with one Hazura Singh about 45 years before the institution of the suit had forfeited her rights to the estate of Ganda Singh and that since she had refused to accept this position about a week before the institution of the suit, cause of action had arisen to them. In view of the language of Article 58 ibid it has to be seen when the cause of action first accrued to the Appellants. Even if it be taken that a couple of years after the death of Ganda Singh, Harnam Kaur allegedly entered into a karewa marriage with one Hazura Singh, and the predecessor of the Appellant, namely, Santa Singh, did not care to have the record of rights corrected, the first occasion for him to do so arose when Mutation Exhibit D. W. 9/A with respect to inheritance of Smt. Saddi was sanctioned on 14.4.1942. Her share in the land by virtue of this mutation was recorded to have been inherited by Harnam Kaur and Santa Singh in equal shares. It was on this date that the right first accursed to the pre-dresser-in-interest of the Appellant to seek a declaration from the civil court that Harnam Kaur had forfeited her right in the property but he did not do so. When Santa Singh died and inheritance of his estate was entered into the name of Nazar Singh, Saudagar Singh and their mother Kishno to the extent of only 1/2 share and remaining 1/2 share was recorded to be the ownership and possession of Harnam Kaur as reflected in the Jamabandi for the year 1945-46, Exhibit D. W 8/E, this was the second time when the Appellants could have filed a suit for declaration that Harnam Kaur had forfeited her rights in the property. The third occasion arose when after the death of Smt. Krishno her share in the suit land was inherited in equal shares by all the Appellant and Harnam Kaur continued as owner in possession of 1/2 share as reflected in the Jamabandi for the year 1961-62, Exhibit D. W. 8/G. In fact, the position in the record of rights continued to be the same till the last Jamabandi for the year 1969-70. No doubt an attempt was made by the Appellants to get a stray entry in the Khasra Girdawari for crop harvest 1970-71, Exhibit D. W. 8/K to obliterate the ownership of possession of Harnam Kaur, but that was of no avail to them because Harnam Kaur immediately moved the revenue authorities and vide Exhibit P. W. 9/6, an order was passed by the Collector on 6.12.1972, correcting the Khasra Girdawari. The learned Counsel for the Appellants contended that whenever another threat is posed to the right of ownership and possession of the suit land by Harnam Kaur the Appellants got a fresh cause of action to file the suit for declaration. Their averment in the plaint is that a week preceding the date of institution of the suit Harnam Kaur refused to accept the fact that she had forfeited her rights in the suit property gave them a fresh cause of action to bring the suit within limitation. I am afraid this contention is no longer valid in view of the clear language of Article 58 ibid. No doubt under the Limitation Act 1908 there was a conflict of the decision as to whether there may be successive denials of the Plaintiff''s right so as to furnish successive causes of action for a suit for a declaration. This conflict stands resolved by the express provision of Article 58 ibid to the effect that time will begin to run from the date when the cause of action first accrued, I am, therefore, of the firm view that the suit of the Appellants was not within limitation and the finding recorded to this effect under issue No. 1 by the learned Additional District Judge is affirmed.

The last point which was in fact argued at great length by the learned Counsel for the Appellant is that the finding recorded by the learned Additional District Judge on Issue No. 4 is not correct. He contends that the affidavit dated 30th October 1967, Exhibit P. W. 5/2, is proved to have been executed by Harnam Kaur. She categorically stated therein that she had entered into a karewa marriage with one Hazura Singh after the death of her husband Ganda Singh He tried to find fault with the appreciation of evidence of Karnail Singh, D. W. 5, Saudagar Singh P. W. 9 and the" Handwriting Expert P. W. 7. I have carefully scrutinized the finding recorded by the learned First Appellate Court. In my view, the affidavit Exhibit P. W. 5/2 has been rejected for very cogent reasons. There was no occasion for Harnam Kaur to execute this affidavit. Karnail Singh P. W. 5 has been rightly held to be a handy witness with the Appellants. He firstly denied that Saudagar Singh, Appellant, was present when the affidavit was allegedly executed. Later he made a non committal statement but his stand was belied by the statement of Saudagar Singh, P. W. 9 himself who had admitted that he was present at the time when the affidavit was executed. The statement of P. W. 7 is of no help. He stated that the thumb marks on the affidavit are super-imposed and did not admit of comparison with the admitted thumb marks of Harnam Kaur. As regards the two sale deeds dated 15.3.1965, the learned First Appellate Court has rightly held that these deeds are of no help to the Appellants even if these are found to have been proved. There is no mention in these affidavits that Harnam Kaur had entered into a karewa marriage with Hazura Singh and when. If it is, a fact that she entered into a Karewa marriage with Hazura Singh in 1965, this again is of no help to the Appellants because on the coming into force of the Hindu Succession Act, 1956, Harnam Kaur had already become absolute owner of her share in the suit land and her re-marriage was not to forfeit her right therein. Learned Additional District Judge has also noticed inconsistent stands taken at different times by the Appellants as to when Harnam Kaur entered into a karewa with Hazura Singh. Here it may also be noticed that Harnam Kaur filed a suit for partition of her share in the suit land with the revenue authori-ties. The Appellants filed a written statement on 1.7.1971 in the suit, copy of which is Exhibit D. W. 5/A. It is stated therein that Harnam Kaur entered into a karewa marriage with Hazura Singh 4/5 years earlier which takes us to the year 1965-66. Only 5 days later the instant suit was filed in which allegations were made that Harnam Kaur entered into a karewa marriage 45 years earlier. For all the reasons stated by the learned Additional District Judge his finding on Issue No. 4 that the Appellants have failed to prove that Harnam Kaur entered into a karewa marriage with Hazura Singh and thus forfeited her rights in the property of Ganda Singh deceased is correct. It does not warrant any interference at the stage of Second Appeal before me. I, therefore, affirm this finding.

Thus, there being no force in the appeal, the same is dismissed with costs. C. M. No. 3831-C of 1986 is dismissed as in fructuous.