IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3131 of 2010 (O&M) Date of Decision:16.11.2010 Kanwal Nain .....Appellant Vs. Nischal Kumar and another .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. C.B. Goel, Advocate for the appellant. **** RAKESH KUMAR GARG, J. This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration to the effect that the judgment and decree dated 14.9.1995 suffered by defendant No.2 in favour of defendant No.1 and mutation No.1298 sanctioned on 25.9.1998 on the basis of the aforesaid decree is wrong, null and void, was dismissed. The brief facts necessary for disposal of this appeal are that Shri Beant Ram was owner in possession of the suit land along with others in equal share. As per averments in the plaint, plaintiff was adopted by Shri Beant Ram as his son. Beant Ram expired on 30.4.1981. It was further averred that defendant No.2 had no right to adopt defendant No.1 as her son as the plaintiff was already adopted by Beant Ram as son. It was averred that mutation No.1121 sanctioned on 3.1.1995 in favour of defendant No.2 only, for inheritance and Beant Ram was null and void as the same was got sanctioned by concealing the true facts from the revenue authorities. It was further averred that collusive decree suffered by defendant No.2 in favour R.S.A. No.3131 of 2010 (O&M) -2- of defnedant No.1 was illegal, null and void as he was not adopted son of Beant Ram. It was also averred that the said decree was not registered, and therefore no right or title can be passed in favour of defendant No.1. Hence, the suit. The defendants contested the suit raising various preliminary objections in the written statement. It was pleaded that the plaintiff was never adopted by Beant Ram as a son. It was further pleaded that defendant No.2 had adopted defendant No.1 when he was six months old by performing ceremonies. Defendant No.2 was absolute owner of the suit property and she had transferred the same in favour of defendant No.1 through court decree. It was pleaded that this fact was also within the knowledge of the plaintiff. It was further pleaded that defendant No.2 had executed a will in favour of defendant No.1 as he was looking after her in her old age. Dismissal of the suit was prayed for. On the basis of the pleading of the parties, the following issues were framed:- “1. Whether the plaintiff is entitled to relief for declaration, as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has no locus-standi to file the present suit?OPD 4. Whether the suit of the plaintiff is time-barred. 5. Whether the plaintiff has no cause of action to file the present suit?OPD 6. Whether the suit of the plaintiff is false and frivolous R.S.A. No.3131 of 2010 (O&M) -3- and is liable to be dismissed with cost?OPD 7. Relief.” The parties led evidence in support of their respective case. However, during the course of arguments before the trial Court, counsel for the parties made joint request and recorded their statements to the effect that Issue No.4 regarding the limitation be treated as preliminary issue. Accordingly, the Issue No.4 was treated as preliminary issue and the suit was held to be barred by limitation by the trial Court and suit of the plaintiff was dismissed vide impugned judgment and decree dated 20.8.2009. Feeling aggrieved from the aforesaid judgment and decree, the plaintiff filed an appeal before the lower appellate Court, which was also dismissed. While dismissing the appeal, the lower appellate court observed as under:- “While having due regards to the contention of the learned counsel for both the parties, it is observed that plaintiff has challenged judgment and decree dated 14.9.95 suffered by Inder Rani in favour of defendant number 1 Nischal Kumar and mutation number 1121 sanctioned on 3.1.1995 and 25.9.98 on the basis of judgment and decree dated 14.9.95. He has alleged that he was adopted by Beant Ram as his son whereas defendants have denied the same. It is not disputed that defendant number 2 Inder Rani is widow of Beant Ram. Both parties had produced their evidence. It is not in dispute that during the course of arguments before learned Civil Judge, R.S.A. No.3131 of 2010 (O&M) -4- counsel for both the parties had made joint statement to the effect that issue no.4 regarding law of limitation be treated as preliminary issue and so issue number 4 regarding law of limitation was treated as preliminary issue. It is observed that it is not in dispute that Beant Ram was recorded as owner of suit property. He died on 30.4.1981. Inder Rani defendant no.2 is widow of Beant Ram and she inherited the property of Beant Ram after death of Beant Ram. Mutation of inheritance dated 3.1.1995 was sanctioned. Judgment and decree dated 14.9.95 was suffered by Inder Rani defendant number 2 in favour of defendant number 1 Nischal Kumar. It is observed that Plaintiff Subhash Chand did not step into the witness box during his lifetime to prove himself to be the adopted son of deceased Beant Ram. Plaintiff could challenge mutation of inheritance dated 3.1.1995 within three years from the date it was sanctioned or from the date it came to the knowledge of plaintiff but nowhere in the plaint the plaintiff has pleaded that as to when he came to know regarding sanctioning of mutation in favour of defendant no.2. The inheritance would be drawn that plaintiff was in the knowledge of sanctioning of mutation in favour of defendant number 2 from the very first day. The period of limitation starts running from 3.1.1995 for challenging the mutation of the same date and from 14.9.1995 for challenging the judgment and decree and mutation based thereon. Once the limitation starts it cannot be stopped in R.S.A. No.3131 of 2010 (O&M) -5- between. According to Article 58 of Limitation Act, limitation to challenge the mutation is three years. As per pleading itself plaintiff has alleged that right to sue first accrued to him on 3.1.1995. Thus, the limitation for filing the suit expired on 2.1.1998. The present suit was filed on 9.2.1999 and the same has rightly been held time barred by learned Civil Judge. The proposition of law laid down in the citation relied upon by the appellant is not disputed but the same is not applicable in the present case because in the present authority suit for possession on the basis of inheritance was filed, whereas facts of case in hand are not identical. There is no illegality or infirmity in the findings recorded by the learned Civil Judge (Sr. Divn.), Ambala and as such the same are upheld.” Still not satisfied, the plaintiff has approached this Court by way of instant appeal submitting that the following substantial questions of law arises in this appeal:- (i) Whether the finding recorded under issue No.4 is perverse and legally not sustainable, as the collusive decree dated 13.3.1995 was kept secret and mutation was got sanctioned on that basis after more than 3 years i.e. on 25.9.1998 and the suit has been filed on 9.2.1995 i.e. immediately after mutation No.1298 dated 25.9.1998 was sanctioned? (ii) Whether rights in an immovable property value of which is more than Rs.100, could be transferred otherwise than R.S.A. No.3131 of 2010 (O&M) -6- by a registered instrument and admittedly collusive decree has not registered? (iii) Whether in the facts and circumstances of the present case, the judgment and decrees of the court below are sustainable in law being based on misreading of evidence on record? In support of his appeal, learned counsel for the appellant has vehemently argued that the entire approach of the Courts below, in recording findings on the issue of limitation against the appellant, was perverse and contrary to the facts proved on record and the law as applicable and, therefore, the same were legally unsustainable and were liable to be set aside. Elaborating his argument, learned counsel for the appellant further submitted that the appellant had filed the present suit challenging decree dated 13.3.1995 suffered by defendant No.2 in favour of defendant No.1 and mutation was sanctioned on 25.9.1998 on the basis of the aforesaid decree. Since the suit was filed on 8.2.1999 and the same having been filed within three years from the date of sanction of mutation, it could not be held to be beyond limitation as the plaintiff had come to know of the decree dated 13.3.1995 only when mutation was sanctioned on 25.9.1998 as the decree was kept secret and had seen the light of the day only on the date of sanction of mutation and thus the findings recorded contrary to the evidence placed on record are liable to be set aside. Counsel for the appellant further argued that plaintiff was seeking a decree for declaration and possession on the basis of inheritance and, therefore, the suit could not have been held to be beyond limitation. R.S.A. No.3131 of 2010 (O&M) -7- On the basis of the aforesaid documents, learned counsel for the appellant submitted that the substantial questions of law as mentioned in the foregoing paragraphs arises in this case in favour of the appellants and the impugned judgments and decrees are liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgments and decrees. The argument raised by learned counsel for the appellant is without any merit and is liable to be rejected. In para No.6 of the plaint, the appellant has submitted that cause of action arose in his favour firstly on 3.1.1995 and then on 13.3.1995 when the collusive decree was passed and subsequently on 25.9.1998 when the mutation was sanctioned in favour of defendant No.1 on the basis of the aforesaid decree. The Courts below have recorded a finding that the appellant has not pleaded in the plaint as to when he got the knowledge of mutation sanctioned in favour of defendant No.2 and the impugned judgment and decree and therefore, it was presumed that he had the knowledge of sanctioning the mutation of inheritance regarding deceased Bant Ram in favour of defendant No.2 and passing of decree in favour of defendant No.1. The Courts below also found that the appellant could not prove himself to be adopted son of Beant Ram and he never stepped into witness box to prove himself to be adopted son of deceased Beant Ram. There is not an iota of evidence to prove the case of adoption of the appellant. In fact in the pleadings, the appellant has not challenged the fact that defendant No.2 was absolute owner of the suit property and the only challenge made by him is to the effect that defendant No.2 could not suffer decree dated 13.3.1995 in favour of defendant No.1 as he was the adopted R.S.A. No.3131 of 2010 (O&M) -8- son of Beant Ram. Once he is not proved to be the adopted son, he had no locus to challenge the adoption of defendant No.1 and also the decree suffered by defendant No.2, who was the absolute owner of the suit property. Moreover, the appellant has not made a challenge in the pleadings to the inheritance of Beant Ram by defendant No.2 to his exclusion. In this view of the matter, I find no merit in this appeal. No substantial question of law as argued, arises in this appeal. Dismissed. November 16, 2010 ( RAKESH KUMAR GARG ) renu JUDGE