RSA No. 2127 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2127 of 1982 Date of Decision: April 01 , 2010 Jagir Singh(since deceased) represented through his LRs Nirbhay Singh and others ...... Appellant(s) Versus Kehar Singh (since deceeased) represented through his LRs Harbans Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.V.M.Gupta, Advocate for the appellants. Mr. Sumeet Mahajan, Senior Advocate with Mr. Sham Lal Bhalla, Advocate, Mr. Amit Kohar, Advocate and Mr.Ekant Aggarwal, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellants for possession of the land. Appellant Jagir Singh (since deceased and represented through his LRs viz. the present appellants) had filed the instant suit for possession dated 9.1.1974 claiming that the land in dispute was owned by Lehna who was the father of the appellant's grand mother. He had made an oral gift in RSA No. 2127 of 1982 2 1909 in favour of his second daughter(Bholi). When after his death that gift was proposed to be challenged by his reversioners (one of whom was the father of the respondents) a settlement had been arrived at whereby it was agreed that Bholi would have life interest in the property. As per the appellant Bholi died on 13.2.1960 after making a will in his favour. That inheritance was challenged by the respondents by filing a civil suit on the ground of the earlier agreement between the parties. The appellant took the plea that with the coming into force of the Hindu Succession Act, Bholi's limited ownership had been enlarged into full ownership under Section 14 (1) and consequently he had become the owner of the property. The said suit was decreed on 22.12.1961. First appeal as dismissed on 22.12.1962 and RSA No. 43 of 1963 was filed. The said RSA was allowed on 10.8.1973 and it was held that Bholi had become full owner and could execute a will in favour of the appellant. It was thereafter that the instant suit was filed as mentioned above. The respondents took the plea that they had become owners by adverse possession. On merits they asserted the validity of the will. The Courts below held that the will was surrounded by suspicious circumstances and further that the respondents had perfected their title by adverse possession. The following questions have been proposed:- a) Whether a person had obtained possession claiming himself to be as owner as an heir to the last person holding the title and his suit for declaration and ownership is decreed between inter parties and finally the suit is dismissed holding that he is not the owner or is not entitled to a declaration and injunction against the defendant, can it be said that the suit of that defendant on the basis of title is time barred or the possession of those persons during the pendency of the suit in RSA No. 2127 of 1982 3 the appellate court their title was adverse although it can be referred to the title recognised by the courts by way of decree and judgment granted in his favour? b) Where the finding has been recorded without taking into consideration the previous litigation to admission and finding recorded inter parties can that finding be sustained in law simply on the basis of oral evidence given by the plaintiff after 20 years of the event and which position is contrary to the pleadings and the admission of the defendant and their statement in the previous suit? c ) That the suit is on the basis of title and not on the allegation of possession or dispossession and falls within article 65 of The Indian Limitation Act, 1963, still it is on the plaintiff to prove that he was in possession within 12 years of the suit? Questions No.(a) and ( c) are related. Learned counsel has argued that till 1973 the Courts had accepted the title of the respondents and thus the instant suit filed within six months (of the judgment of this Court in RSA No. 43 of 1963) could not be held to be barred by limitation. In this regard learned Lower Appellate Court has found that the appellant had himself admitted that the respondents had taken over forcible possession of the land within a period of one year of the death of Bholi ( on 23.2.1960) and thus on calculation from 23.2.1961 they had been in hostile and adverse possession of the land in dispute vis-a-vis the appellant for almost 13 years. The learned Lower Appellate Court also found that the earlier litigation which had been initiated by the respondents could not have the effect of debarring the appellant from filing his own suit for possession and thus the pendency of the earlier litigation would not have the effect of suspending limitation. Learned counsel for the appellant has not cited any precedent that such period could be excluded. In my opinion no fault can be found RSA No. 2127 of 1982 4 with this finding. As regards question No. (b), learned counsel has vehemently argued that the appellant had relied upon the will in the earlier litigation but the respondents had not challenged the same and thus their challenge in the present suit would be barred by the provisions of Order 2 Rule 2 CPC. In my opinion once the answer to questions No.(a) and ( c ) has been held against the appellant this question has been rendered hypothetical and is not necessary to be decided. Consequently holding all the questions proposed against the appellants, this appeal is dismissed. No costs. (AJAY TEWARI) JUDGE April 01, 2010 sunita