RSA No.1832 of 1979 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1832 of 1979 Date of decision: 18.3.2010 Jagat Singh (died) through LRs and another ............Appellants Versus Jawala Singh (died) through LRs and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. D. V. Sharma, Sr. Advocate with Mr. Harit Sharma, Advocate for the appellants. Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. The plaintiffs/appellants have filed present second appeal challenging the judgment and decree dated 26.2.1979, thereby dismissing the suit of the plaintiffs in toto. 2. The brief facts of the present case are that the plaintiffs have filed the present Suit No.379 of 1.10.1971 for possession against the defendants over land measuring 901 kanals 9 marlas RSA No.1832 of 1979 2 described in the plaint alleging therein that one Saudagar Singh was owner. After the death of Saudagar Singh, his entire property was inherited by his sole son Maghi Singh. Maghi Singh died living behind Attri (his mother). Maghi Singh had no issue, hence, after the death of Maghi Singh, his mother Attri inherited the entire property as a limited owner. After the death of Attri, her two daughters Ms. Khano, mother of Jagat Singh, plaintiff, and Ms. Kauri, mother of Bachittar Singh, plaintiff, inherited the suit land and were the sole owners thereof and were entitled for possession. 3. One Tarlok Singh also filed Suit No.92 of 18.4.1973 claiming himself a son of Jai Kaur, another sister of Kahno and Kauri and claimed 1/3rd share in the property. Case of Tarlok Singh is same as of Jagat Singh and Bachittar Singh. However, the only difference was according to Tarlok Singh, Jai Kaur was also the daughter of Saudagar Singh and sister of Maghi Singh, hence, Tarlok Singh is also entitled to 1/3rd share alongwith the Jagat Singh and Bachittar Singh as in Suit No.379 of 1.10.1971 (supra). 4. Defendants contested the suit and alleged that they being collaterals of Saudagar Singh, inherited the property. It is also disputed that Kahno, Kauri and Jai Kaur were daughters of Saudagar Singh and plaintiffs of both the suits were sons of daughters of Saudagar Singh as claimed. Defendants despite other defence also took the defence that suit is time barred and since they are in possession for more than 20 years over the property in dispute and are treating them as owner thereof, hence, alternatively have matured their titled by way of adverse possession. 5. Learned trial Court consolidated both the suits, one filed by Jagat Singh and Bachhitar Singh and another filed by Tarlok RSA No.1832 of 1979 3 Singh. Learned trial Court has framed following issues:- “Issues framed on 24.7.1972: 1. Whether the plaintiffs are sister’s sons of Maghi Singh and daughter’s sons of Mst. Attri?OPP. 2. Whether the land in suit was allotted in lieu of Maghi Singh’s land in consolidation as mentioned in Para No.3 of the plaint?OPP. 3. Whether Mst. Attri inherited the property of Maghi Singh deceased?OPP. 4. If issue No.3 is proved, whether Mst. Attri was absolute owner?OPD (objected to). 5. Whether Khano and Kauri inherited the property of Attri as limited owners?OPP. 6. Whether plaintiffs are owners of the suit land?OPP. 7. Whether Munshi Singh is a necessary party? If so, to what effect?OPD. 8. Whether the land in the hands of Maghi Singh and Saudagar Singh was ancestral?OPD. 9. Whether the defendants have become owner of the suit land by adverse possession?OPD. 10. Whether the suit of the plaintiffs is beyond limitation?OPD (Objected to). Issue framed on 23.10.1974: 11. Whether plaintiff Tarlok Singh is a son of Mst. Jai Kaur, daughter of Saudagar Singh and Attri and is entitled to inherit the 1/3rd share of the suit-land?OPP. Tarlok Singh. 12. Whether Jai Kaur was sister of Maghi Singh?OPP. Tarlok Singh. 13. Whether Mst. Jai Kaur inherited the property of Attri as a limited owner?OPP. RSA No.1832 of 1979 4 14. Whether Tarlok Singh plaintiff is benami and figure head for other defendants?OPP. Jagat Singh and Bachhittar Singh. 15. Whether according to custom by which Maghi Singh, Saudagar Singh and defendants were governed, widows inherited the property for life without right of alienation?OPP. 16. Relief.” 6. Learned trial Court decreed the suit of Jagat Singh and Bachittar Singh pertaining to only 36 kanals of land comprising of Khasra Nos.646, 647 and 648 described in the plaint, however, dismissed the suit of Jagat Singh and Bachittar Singh for rest of the properties holding defendants are in possession thereof for more than 20 years and further observing that suit is time barred and in any case defendants have matured their title by way of adverse possession. 7. Suit filed by Tarlok Singh was dismissed and it was observed that Tarlok Singh could not prove that his mother Jai Kaur was a daughter of Saudagar Singh. In other words, case of Tarlok Singh that he has also inherited 1/3rd share in the property was not accepted by the learned trial Court. 8. Tarlok Singh filed no appeal and allowed the finding of the trial Court to become final against him by way of dismissing his suit. However, plaintiffs of other suits i.e. Jagat Singh and Bachittar Singh preferred first civil appeal challenging the part of the judgment and decree, by which their suits was dismissed, for rest of the land beyond 36 kanals. Defendants also filed first appeal challenging the part of the decree by which suit of Jagat Singh and RSA No.1832 of 1979 5 Bachittar Singh was decreed for 36 kanals of land. 9. Learned first Appellate Court consolidated both the appeals and decided both the appeals by way of common judgment dated 26.2.1979 which is impugned herein. Learned first Appellate Court dismissed the suit of the plaintiffs for entire property by holding that defendants have succeeded in proving that suit of the plaintiffs is time barred and in any case defendants have matured their title by way of adverse possession pertaining to the entire disputed property. According to first Appellate Court, learned trial Court was wrong in decreeing the suit of the plaintiffs for part of the plaintiff i.e. 36 kanals of land. 10. I have heard learned Counsel for the parties and perused the record. 11. Learned trial Court recorded finding of fact that suit of the plaintiffs for the land beyond 36 kanals comprising in Khasra Nos.646, 647 and 648 is time barred and thus in any case defendants have successfully proved their adverse possession over the property in dispute beyond 36 kanals. Learned first Appellate Court vide impugned judgment confirmed the finding of fact recorded by the learned trial Court pertaining to the land over 36 kanals area by which learned trial Court has recorded finding of fact that defendants has been continuously in possession for more than 12 years and suit of the plaintiffs is not within time. Learned first Appellate Court in the impugned judgment has held that mutation of inheritance Ex.P25 was sanctioned in favour of the defendants on 13.3.1953; the defendants are in exclusive possession of the encumbered land measuring 685 kanals 8 marlas as per jamabandies 1951-52 (Ex.P26), 1960-61 (Ex.D13), 1965-66 (Ex.D14) RSA No.1832 of 1979 6 and 1970-71 (Ex.D15). It was further observed by the learned first Appellate Court that remaining mortgage land was redeemed by the defendants in the year 1957 and they are in its cultivating possession since then i.e. for more than 12 years before the institution of suit. It is further observed by learned first Appellate Court that when Jagat Singh, plaintiff, was pursuing the consolidation proceeding as Mukhtiar of Smt. Attri, the first hostile act was committed by the defendants on 3.12.1952 when they lodged a report Ex.P24 with the Patwari claiming inheritance of Smt. Attri. The second hostile act would be on 13.3.1953 when the mutation of inheritance Ex.P25 was sanctioned in favour of the defendants. Learned trial Court was wrong to decreeing the suit pertaining to 36 kanals of land simply because it was redeemed in 12 years of the institution of suit. As per first Appellate Court, since defendants are in possession and claiming hostile title and recorded in possession as per jamabandi 1951-52, hence, suit of the plaintiffs is time barred which ought to have been filed within 12 years as per Articles 64 and 65 of the Limitation Act. 12. Learned Counsel for the plaintiffs/appellants could not point out any illegality in the order passed by the first Appellate Court. Learned Counsel for the appellants argued that entries of jamabandies are not conclusive and can be rebutted. On being asked, learned Counsel for the appellants could not point out any pleading or evidence to the effect that defendants obtained possession within 12 years prior to the institution of the suit. Learned counsel for the appellants submitted that oral statement of the plaintiffs is sufficient to disprove the entries. I do not agree with the learned Counsel for the appellants. RSA No.1832 of 1979 7 13. In my humble opinion, present case is covered by finding of fact which cannot be disturbed by this Court in the second appeal until and unless there is any substantial question of law. 14. In view of peculiar facts and circumstances of the case as discussed above, no substantial question of law seems to have been arisen in the second appeal. The second appeal is devoid of merit, hence, is liable to be dismissed. 15. Hence, the appeal is dismissed with costs throughout. (ALOK SINGH) 18th March, 2010 JUDGE ashish