R.S.A. No. 1553 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1553 of 2011 Date of decision:-02.11.2011 Lal Chand ...Appellant Versus General Public and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Sanjay Mittal, Advocate for the appellant. RITU BAHRI J. This regular second appeal is against the judgment dated 23.12.2010 passed by the Additional District Judge (Fast Track Court), Narnaul whereby he has dismissed the appeal filed by the plaintiff against the judgment and decree dated 13.3.2008 passed by the Civil Judge (Junior Division), Narnaul. The plaintiff had filed a suit for declaration and mandatory injunction. As per the plaint, plaintiff was owner in possession of 3/4th share of the suit property. The dispute is that the plaintiffs and defendants are successors-in-interest of one Teja. Teja has two sons namely Mansukh and Hardev. The plaintiffs and defendant Nos.2 to 13 stepped into the shoes of Mansukh, after his death. The suit land is comprised of 84 Kanal R.S.A. No. 1553 of 2011 -2- 17 Marla situated in village Rampura, Tehsil Ateli, District Narnaul. This land, after death of Teja, devolved upon Mansukh and Hardev. Hardev had two sons namely Prem and Maan and they have migrated from the village to some other place after relinquishing their share in favour of predecessor-in-interest of the plaintiff and defendant Nos.2 to 13. The plaintiffs' case is that predecessor-in-interest of defendant Nos.2 to 11 i.e. Kishori Lal got a gift deed executed on 4.12.1958 through Prem son of Hardev in their favour. On the basis of this gift deed one mutation was entered in favour of predecessor-in-interest of defendant Nos.2 to 11 wherein half share of Prem and Maan was gifted to Kishori. This mutation was cancelled by the Assistant Collector 1st Grade on objection being made by predecessor-in- interest of the plaintiff in the year 1964. Though the mutation was cancelled, the gift deed was not challenged. In the present suit the plaintiffs have sought a declaration that this gift deed is null and void. In the present suit they have sought declaration of 3/4th share in possession and gift deed dated 27.11.1958 is null and void. On notice the defendants filed joint written statement and took the objection of maintainability of the suit that it is barred as per provisions under Order 2 Rule 2 CPC. They have admitted that Teja has two sons Mansukh and Hardev and successors of both have half share each in the property. It was denied that Prem and Maan migrated from the village from 60 R.S.A. No. 1553 of 2011 -3- years back and relinquished their share in favour of plaintiffs. The plaintiffs were neither owners of the property belonging to Prem and Maan nor in possession thereof and they were not entitled to get their names entered in the record in place of Prem and Maan under the gift deed No.1192 dated 27.11.1958, registered on 4.12.1958, was not a forged document. The mutation of the sale was cancelled in 1964 on some technical mistakes in the mutation. The plaintiffs are co-sharers and cannot claim adverse possession against other co-sharers. On 03.5.2002, the trial Court framed the following issues :- “1. Whether plaintiff and proforma defendants are owners in possession over 3/4th share of suit land? OPP 2. Whether the gift deed dated 27.11.1958, No.1192 registered on 4.12.1958 is illegal, null and void and not binding on the plaintiff and proforma defendants? OPP 3. Whether plaintiffs are entitled for correction of revenue entries?OPP 4. Whether the plaintiffs are entitled to possession by way of partition?OPP 5. Whether the suit is time barred? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is time barred under Order 2 Rule 2 CPC?OPD 8. Whether the plaintiff is estopped from filing of present suit by his own act and conduct? OPD 9. Relief.” R.S.A. No. 1553 of 2011 -4- The trial Court after examining the witnesses produced by the plaintiffs and defendants gave finding on issues Nos.1 to 4 in favour of defendants and against the plaintiffs. The gift deed dated 27.11.1958 could not be declared as null and void as it was not challenged by Prem and Maan in the lift-time and neither it was challenged by predecessor-in-interest of plaintiffs and proforma defendants during their life-time. It is valid and binding on the parties. The validity of the gift deed has not been challenged and it has attained finality. Vide Annexure P-7 the mutation was registered on the basis of gift deed dated 27.11.1958 and subsequently A.C.1st Grade, Narnaul had cancelled the said mutation vide Ex.P8 and P9. While cancelling the mutation no order on the validity of the gift has been passed till date. The plaintiffs cannot claim ownership to the extent of 3/4th share on the ground that Prem and Maan sons of Hardev went missing and their whereabouts are not known and on account of this fact plaintiffs have a right to inherit their share in property. The gift deed dated 27.11.1958 (Ex.DW3/A) has not been challenged and as per Article 56 and 59 of the Limitation Act a suit challenging the validity beyond a period of three years is liable to be dismissed. As far as on issue Nos.5 to 8 the trial Court has given a finding that the suit was barred by the provisions of Order 2 Rule 2 CPC. The plaintiffs have earlier filed a suit bearing No.1161-RT dated 25.11.1993. In this suit the following issues were framed on 27.4.1998 :- R.S.A. No. 1553 of 2011 -5- “1. Whether the parties are descendants of Mansu and are members of one family?OPP 2. Whether Prem and Maan sons of Hardev are missing for 50 years and are legally dead?OPP 3. Whether the plaintiffs and defendants No.2 to 17 are jointly owners in possession of the suit property?OPP 4. Whether gift deed dated 27.11.1958 in favour of Kishori is valid and legal deed and is binding on other parties to the suit?OPD 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiffs are estopped from filing the suit by their act and conduct?OPD 7. Whether the plaintiffs have no locus-standi to file the present suit?OPD 8. Whether the suit is time barred?OPD 9. Whether the defendants are entitled to any special costs?OPD 10. Relief.” A perusal of the issues framed shows that the gift deed dated 27.11.1958 was the matter in dispute between the parties and on this basis issue No.4 was framed. While withdrawing the suit on 02.9.2000 no permission for filing fresh suit was sought. On this ground it was held by the trial Court that the suit was barred by the provisions under Order 2 Rule 2 CPC. Order dated 02.9.2000 is reproduced below :- “Today case was fixed for rebuttal evidence, if any and arguments, but learned counsel for the plaintiff has stated that he does not want to proceed further with the case and he be allowed to withdraw the suit. Statement of plaintiff with R.S.A. No. 1553 of 2011 -6- his counsel recorded. Keeping in view the statement, suit of the plaintiff is dismissed as withdrawn. File be consigned to the record room after due compliance.” The trial Court has held that the suit was barred by the provisions under Order 2 Rule 2 CPC. The gift deed was challenged in the suit bearing No.1161-RT of 25.11.1993, which was later on withdrawn. The suit was time-barred. The suit of the plaintiff was dismissed in view of the above facts. In the appeal filed by the plaintiffs the order of the trial Court has been affirmed vide judgment dated 23.1.2010. After going through the facts of the case I am of the considered view that the finding of fact arrived by both the courts below that the gift deed dated 27.11.1958 could not be challenged in the present suit on the ground of res-judicata under Order 2 Rule 2 CPC as it had been earlier challenged in civil suit No.1161-RT of 1993 does not call for interference. In this suit issue No.4 had been framed regarding the validity of the gift deed dated 27.11.1958. This suit was withdrawn on 2.9.2000. No permission for filing fresh suit was sought. The gift deed dated 27.11.1958 could be challenged within three years of the period of its execution, which had not been done. No substantial question of law arises for consideration, as contemplated under Section 100 of the Code of Civil Procedure by this Court. The regular second appeal is dismissed. R.S.A. No. 1553 of 2011 -7- November 02, 2011 ( RITU BAHRI ) Vijay Asija JUDGE