RSA No.2975 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2975 of 1984 Decided on : 25-08 2010 Arjan ....Appellant VERSUS Sada Ram and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Mahi Pal Singh, Advocate for Mr. Ashish Kapoor , Advocate for the appellant. None for the respondents MAHESH GROVER, J This appeal is directed against the judgments of the Trial Court dated 9.5.1983 and that of the Appellate Court dated 28.7.1984. The appellant-plaintiff filed suit for declaration to the effect that he was owner in possession of the 1/3rd share of land left by Dharu s/o of Ashu and his share amounted to 1/9th of the whole khewat as Dharu individually was owner of 1/3rd share. It was pleaded that Dharu died in the year 1928 and at the time of his death his three brothers namely Ram Datt, Nahra and Pat Ram were already dead. The land belonging to Dharu ought to have been mutated in favour of the successors in interest of these three brothers equally with each brother getting 1/3rd share. But in reality it was mutated in favour of sons of Nahra and Pat Ram while son of Ram Datt RSA No.2975 of 1984 2 namely Sheokala was excluded from the mutation of inheritance. Arjan the appellant is son of Sheo Kala. Declaration was thus sought that he be declared owner to the extent of 1/9th share which should have come to him after death of Dharu and that further mutation no. 173 which was sanctioned on 19.8.1928 be declared as null and void and not binding on the rights of the appellant. He further averred that revenue records does not establish his possession yet he remained owner in possession of his share. One of the defendants i.e. defendant no.1 namely Sada Ram who was the successor in interest of Pat Ram admitted the claim of the appellant while the suit was contested by other defendants who represented the successor in interest of Nahra who pleaded that mutation had been correctly sanctioned and denied existence of Ram Datt as brother of Dharu and Sheokala as son of Ram Datt. They also pleaded that plaintiff had no locus standi and no cause of action to sue. Parties went to trial on the following issues:- 1. Whether the plaintiff is the owner in possession of 1/9th share of the suit land? OPP. 2. Whether mutation No.173 dated 19.8.1928 is illegal, null and void and not binding on the rights of the plaintiff? OPP. 3. Whether the plaintiff has no locus standi and no cause of action to sue?OPD. 4. Whether the suit of the plaintiff is time barred? OPD. 5. Whether the suit has not been properly valued for the purposes of Court fee? OPD. RSA No.2975 of 1984 3 6. Whether the plaintiff is estopped by his acts and conduct to sue? OPD. 7. Whether the plaintiff is estopped by his acts and conduct as alleged in preliminary objection no.8 of the written statement? OPD. 8. Whether the defendants are entitled to special costs u/s 35- A CPC? OPD 9. Whether the plaint has not been properly verified if so, its effect? OPD. 10.Relief Both the Courts recorded that Ram Datt was brother of Dharu and was also entitled to 1/3rd share but declined the prayer on the ground that the suit was barred by limitation. Assailing the said findings the instant appeal has been filed. Learned counsel for the appellant contended that in view of the categoric admission by one of the defendants, the suit ought to have been decreed. No one has put in appearance on behalf of the respondents. After hearing learned counsel for the parties, I am of the considered opinion that the contention raised before this Court is without any merit for the simple reason that even if the admission is to be considered then also the appellant does not succeed because for the simple reason that mutation in question was sanctioned in the year 1928 and was to the knowledge of all concerned persons who were collaterals and the suit was instituted on 20.12.1980. The appellant who pleaded possession could not establish the same by way of any material on record that there was any revenue entry in his favour nor any inspiring evidence to show RSA No.2975 of 1984 4 that he was in possession of the land. For the said reason when the suit for declaration simpliciter without seeking possession has been filed after a lapse of 52 years, the Courts were right in appreciating that the suit is barred by limitation. Even otherwise, suit for declaration simpliciter without possession being sought is not maintainable. Dismissed. August 25, 2010 (Mahesh Grover) rekha Judge