RSA No. 1231 of 2006 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1231 of 2006 Date of decision: March 3,2009 Ram Chander son of Lakhi ..Appellant. Versus Om Parkash and others ..Respondents Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr. Sandeep Chhabra, Advocate for the appellant Mr. Sunil Chadha, Advocate and Mr. Harish Bhardwaj, Advocate for the respondents. .. Rakesh Kumar Garg,J. Subject matter of dispute is agricultural land measuring 15 Kanals 15 Marlas situated within the revenue estate of village Mundlana Tehsil Gohana detailed in para No.1 of the plaint. Lakhi Ram was recorded as owner in possession of the said land to the extent of ½ share; whereas the other ½ share was owned and possessed by legal heirs of Shri Ganga Ram. Lakhi Ram to the extent of ½ share and legal heirs of Shri Ganga to the extent of their ½ share suffered a decree dated 17.1.1981 in respect of the suit land in favour of defendant No.1 only i.e., one of the sons of Lakhi Ram, in civil suit No.425 of 1980 titled Ram Chander Versus Smt. Phoolpati etc. passed by the court of then learned Sub Judge Ist Class, Gohana. The other four sons of Lakhi , Om Parkash, Ramphal, Prem Singh and Siri Krishan (now respondents No.1 to 4) challenged that decree to be null, illegal and void by pleading that suit property was ancestral in the hands of Shri Lakhi Ram, in which they (plaintiffs) and other children of Lakhi Ram had birth rights; that Lakhi Ram had no right to alienate the same in such a manner so as to deprive the plaintiffs and defendants No.4 and 5 from the same; that in plaint of civil suit No.425 of 1980 a family settlement was pleaded amongst the parties RSA No. 1231 of 2006 2 of that case, which is totally wrong and illegal, as no such family settlement ever took place nor could take place without impleading the plaintiffs of the present case; that impugned judgment and decree dated 17.1.1981 amount to a gift which Lakhi Ram had no right to make and further that impugned decree created right/title for the first time in the property worth more than Rs. 100/- and so it required registration. With all these averments, plaintiffs sought a decree of declaration that judgment and decree dated 17.1.1981 passed in suit No.425/1980 titled “Ram Chander Versus Phoolpati” are null, illegal and void and not binding on the rights of plaintiffs and defendants No.4 and 5. They further pleaded for a decree of permanent injunction to restrain defendant No.1 (now appellant) from alienating the suit land to the extent of more than his share and from creating any encumbrances upon the same. Plaintiffs further prayed that though they are in joint possession of the suit land along with defendant No.1 but in case court comes to the conclusion that they are not in possession then a decree for joint possession be also passed. In the joint written statement filed by the appellant (defendant No.1) and respondent Nos.5 and 6(defendant Nos.2 and 3), it was pleaded that plaintiff’s had separated from Lakhi Ram whereas Smt. Chanderpati and Chand Kaur(defendant Nos.4and 5) after their marriage lost all their ties in the property of deceased Lakhi as they had become members of families of their respective in-laws. It was further pleaded that Lakhi was living with defendant/appellant Ram Chander and that said Lakhi had relinquished all his rights in favour of Ram Chander in June, 1978 in the suit property. Said Lakhi ahd some other property in village Bhadoti which was purchased by him but lateron the said deed of that property was got executed and registered in favour of the plaintiffs. It was submitted that after separation, property no longer remained ancestral in nature at the hands of Lakhi, which was transferred in favour of appellant (defendant No.1) during his life time. All the other allegations made in the plaint were denied. It was stated that plaintiff had no concern over the suit land. With this RSA No. 1231 of 2006 3 stand, prayer was made to dismiss the suit. Defendant Nos.4 and 5 (now respondent Nos.7 and 8) did not contest the suit and were proceeded against ex parte. After taking evidence produced by the parties, Civil Judge (Junior Division), Gohana held that impugned judgment and decree passed in Civil Suit No.425 of 1980 titled as Ram Chander Versus Phoolpati and others dated 17.1.1981 was illegal, null and void and was liable to be set aside and the plaintiffs are entitled to a decree for permanent injunction. However, it was also held that decree for possession cannot be granted to the plaintiffs as the plaintiffs who were held to be co-sharers may file a separate suit for partition and the suit of the plaintiff-respondents was decreed in terms of the aforesaid findings vide judgment and decree dated 9.2.2004. Aggrieved with the aforesaid judgment and decree of the trial court, defendant No.1 filed an appeal, which was held to be without any merit and decree dated 17.1.1981 was held illegal to the extent of half share held by Lakhi Ram. The plaintiff-defendant Nos.1, 4 and 5 were held entitled to inherit the suit property i.e., half share of Lakhi Ram in equal shares as per the provisions of Hindu Succession Act. They were also held entitled to a decree for joint possession as per their share in the suit property. Still not satisfied, the appellant has filed the instant appeal challenging the judgment and decrees of the courts below in this Court. Learned counsel for the appellant has vehemently argued that the property in dispute was not ancestral in nature as in this case mutation of inheritance connecting the plaintiffs with his common ancestors was not proved on record and therefore, it cannot be said that property held by him was ancestral. Learned counsel has further argued that the cross-examination of the plaintiff was not completed and therefore his testimony cannot be read into evidence and thus findings on issue No.1 by the courts below are erroneous. Learned counsel has also argued that the suit filed by the plaintiff- respondents was not within limitation as the impugned decree was passed in the RSA No. 1231 of 2006 4 year 1981 and the instant suit has been filed after a lapse of about 18 years i.e., much beyond the period of limitation and hence the suit of the plaintiff- respondents was liable to be dismissed. On the basis of the aforesaid arguments, learned counsel for the appellant has argued that the following substantial questions of law arise in this appeal:- i) Whether the suit property is ancestral in nature or not? ii) Whether the suit was within limitation? On the other hand, learned counsel for the plaintiff-respondents has vehemently argued that both the courts below on appreciation of evidence have recorded a finding of fact that property in dispute at the hands of Lakhi Ram was ancestral in nature. It was further argued that since the plaintiffs were co-sharers in the suit property along with appellant and other heirs of Lakhi Ram and therefore, they were in joint possession along with defendant No.1. In such a case, the plea of limitation was not available to the appellant. Lastly, learned counsel for the respondents has prayed that no substantial question of law arises in this appeal and the appeal is liable to be dismissed. I have heard learned counsel for the appellant. While determining the nature of the property, the lower Appellate Court observed as under:- “Ancestral nature of the suit property is proved by overwhelming evidence on the file. Ex. PX to be read with jamabandis Ex. PX/A to Ex. PX/J, is the revenue excerpt in respect of the suit land, which gives the history of the suit land from the year 1914-15 onwards. It is revealed there from that in the year 1938-39, Hari Singh, the common ancestor of the parties was recorded owner of the suit land and he was succeeded by his sons Lakhi and Ganga Ram in the year 1942-43. xxxx xxxx xxxx Apart from above, appellant-defendant No.1 cannot wriggle RSA No. 1231 of 2006 5 out of his own admission. Ex.PW3/A is the certified copy of the plaint which was filed by now defendant No.1-appellant Ram Chander, in civil suit No.425 of 1980. That plaint has been duly proved by the statement of PW3 Shri Prem Parkash Sharma Advocate who had drafted the same on behalf of Shri Ram Chander. In para No.2 of the said plaint Ex.PW3/A it was clearly pleaded that property in dispute was Joint Hindu Family Property. Not only this, even in the present case when defendant No.1 Ram Chander entered the witness box as DW1 he admitted in unequivocal words that suit property is ancestral in nature. On the face of the aforesaid overwhelming evidence on record, there is nothing wrong in holding that the property in dispute was ancestral in which the plaintiff-respondents along with defendant No.1/appellant had a right since birth. The contention of the appellant that testimony of plaintiff-Prem Singh cannot be relied upon as the same was not completed is also without any merit. Admittedly, Prem Singh entered the witness box. He was cross-examined at length though it appears that his further cross-examination was deferred. There is nothing on record that appellant made any attempt to recall him for the purpose of further cross examination. The Hon’ble Supreme Court in Rattan Dev Versus Pasam Devi (2003-1) PLR 101 has held that while appreciating the oral and documentary evidence available on record, it has to be kept into consideration that if from, the said evidence brought on record plaintiff has been able to discharge the onus which lay on him, then failure of the plaintiff to appear as a witness will not make any difference, meaning thereby, if the evidence available on file is sufficient enough to discharge the onus which lay on the plaintiff, then non-appearance as witness is immaterial. In the present case, the lower appellate Court has recorded a finding of fact that even if the statement of PW4 is to be ignored, the case of the plaintiffs stand duly proved by the overwhelming evidence on record as noticed by the lower Appellate Court. RSA No. 1231 of 2006 6 The last contention of the appellant that the suit was filed much beyond the period of limitation is also without any merit. Upon the death of Lakhi Ram, plaintiffs along with defendant Nos.1,4 and 5 inherited the share of Lakhi Ram in the suit property and became co-sharer therein. It is well settled that possession of one co-sharer is to be treated as possession on behalf of all the other co-sharers, even if the other co-sharers are not in actual possession of the suit property. Thus, the plaintiffs became co-sharers in the suit property along with appellant and other heirs of Lakhi Ram and they were in joint possession of the same. In such a case, cause of action will arise only when there is a threat to the title of the plaintiffs. Reference in this regard can be made to the judgment of this court in Smt. Bhagwanti Devi Versus Mat Ram (2003-3) PLR 585. Similarly in Balwant Singh Versus Khushal Singh (23003-3) P.L.R. 439, it has been held that limitation starts running from the date when right to sue first accrues. Mere entry in the record of rights in the name of defendant is not enough to furnish cause of action and that time will begin to run from the date when there is some threat from the defendant for denial of his title. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. March 3,2009 (RAKESH KUMAR GARG) nk JUDGE