HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 102 OF 2002 1. Vikram Singh S/o Shri Uttam Singh, 2. Smt. Jama Devi, W/o Shri Upendra Singh, 3. Ravindra Singh, S/o Shri Tapendra Singh, 4. Sohan Singh, S/o Shri Mohan Singh, 5. Darshan Singh, S/o Shri Narayan Singh, 6. Jitendra Singh, S/o Shri Veer Singh, 7. Surendra Singh, S/o Shri Bhopal Singh, All R/o Baniawala (Bauradiwala), District – Dehradun. ......Defendants/Appellants. Versus 1. Shoorvir Singh, S/o Shri Hoshipar Singh, R/o Ward No. 2,Purana Darbar, Tehri and Village Bauradi, Patti Sarjula, District Tehri Garhwal. ..........Plaintiff/Respondent. 2. Mahendra Singh, S/o Shri Hoshiyar Singh, 3. Gajendra Singh, S/o Shri Hoshiyar Singh, 4. Laxman Singh, S/o Shri Padam Singh, 5. Ram Chand Singh, S/o Shri Padam Singh, 6. Kendra Pal Singh, S/o Shri Padam Singh, 7. Vijay Pal Singh, S/o Shri Ratan Singh, 8. Gopal Singh @ Madia Singh, S/o Shri Jalam Singh, 9. Khushal Singh, S/o Shri Fateh Singh, 10. Sowan Singh, S/o Shsri Fateh Singh, 11. Budhi Singh, S/o Shri Fateh Singh, 12. Vijendra Singh, S/o Shri Atar Singh, 13. Jayendra Singh, S/o Shri Atar Singh, 14. Kaman Singh, S/o Shri Jethu Singh, All R/o Village Baniawala (Bauradiwala), District Dehradun. ......Proforma Respondents. Dated: 27.3.2008 Hon’ble Rajesh Tandon, J. Heard Sri Rajendra Dobhal, counsel for the appellant and Sri Alok Singh, Sr. Advocate, assisted by Sri Ramji Srivastava, counsel for the respondents. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellants have prayed for setting aside the judgment and decree dated 3.9.2002 passed by the District Judge, Tehri Garhwal in Civil Appeal No. 4 of 2000 Shoorvir Singh Vs. Vikram Singh and others arising out of the judgment and decree dated 12.9.2000 passed by Civil Judge (Junior Division) Tehri Garhwal in Original Suit No. 39 of 1998 Shoorvir Singh Vs. Vikram Singh and others. 3. Present second Appeal has been admitted on the following substantial questions of law: “A) Whether the appellate court is justified in entertaining the suit, which is barred by schedule 1st, part 3, clause 58 of Limitation Act, 1963? B) Whether the suit filed for declaration of ownership over the property acquired by the State Government under Land Acquisition Act, is maintainable without impleading the State Government as defendant in the said suit?” 4. Briefly stated, a suit was filed by the plaintiff / respondent no. 1 being Original Suit No. 39 of 1998 Shoorvir Singh Vs. Vikram Singh and others praying to the following effect: ^^13& fd oknh izkFkhZ gS ds i{k esa fUkEufyf[kr izfrdj iznku fd;s tkosa%& ¼v½ fd oknh ds i{k es ;g ?kks"k.kk dh tkos fd iqjkus fVgjh 'kgj ftyk fVgjh x<+oky fVgjh x<+oky ds okMZ ua0 2 es fLFkr [kljk UkEcj 220 o 221] HkqeUMk pkSd dk izfroknhx.k ds lkFk lkFk oknh Hkh lg ekfyd gS vkSj mDr cUnkscLrh dkxtkr esa oknh dk uke Hkh crkSj ekfyd vafdr fd;k tkosa] ¼c½ fd okn lkjk [kpkZ oknh dks izfroknhx.k ls fnyk;k tkosA ¼l½ fd vU; dksbZ izfrdj tks U;k; ds gd esa mfpr gks oknh ds gd esa iznku fd;k tkosaA 5. According to the plaint averments, the plaintiff and the defendants are heirs of common ancestors and they have property in Village Baurari District – Tehri. There has been a litigation between the parties in Suit No. 50/150/37/11, where on 28.3.1932 there has been a compromise and since then the plaintiff is continuing in possession as title holder of the property, which has been acquired. The joint ancestral factory is situate in Ward No. 2 Khasra No. 220 and 221 at Bhumanda Chauk. The plaintiff was serving in the Army and therefore, he was not aware about the acquisition proceedings pending against the land of the plaintiff and therefore, plaintiff has also claimed the ownership of the land in dispute. Plaintiff has also annexed the copy of the pedegree showing that Shoorvir Singh it the son of Hoshiyar Singh and Hoshiyar Singh was the son from common ancestors at Ghamunda. The said pedegree is quoted below: Ghamandu Singh Bhoop Singh Madhu Singh Jethu Singh Kripal Singh Raghunath Singh Dev Singh Badar Singh Kanap Singh Chatur Singh Syuniya Keshar Singh Mohan Singh Narain Singh Govind Bhagat Singh Sohan Singh Atar Singh Darshan Singh Uttam Singh Upendra Singh Tapendra Singh Vijendra Jayendra Singh Singh Veer Singh Bhupal Singh Jitendra Singh Surndra Singh Fateh Singh Hoshiyar Singh Ratan Singh Bachan Singh Padam Singh Vijaypal Singh Jalam Singh Sobhan Singh Mahendra Gajendra Shurvir Singh Singh Singh Laxman Ramchandra Kendrapal Buddhi Singh Madia Singh Kushal Singh 6. The defendants have contested the plaint averments by filing a written statement, wherein in paragraphs 2 and 6, it has been stated as under:- ^^2& fd okn i= dk iSjk ua0 2 dsoy bruk Lohdkj gS fd oknh rFkk izfroknh x.k dh fVgjh ftys esa ckSjkM+h esa lEifRRk Fkh fVgjh 'kgj dh lEifRRk ds Lokeh ,d ek= izfroknh x.k ds iwoZt o mRrjnkrk x.k gh gSaA 6& ;g fd okn i= dk iSjk ua0 6 dsoy bruk Lohdkj ugh gSa fd oknh QkSt dh ukSdjh djrk FkkA fVgjh ftys esa fVgjh Mse cuus dh ;kstuk ds dkj.k iwjs fVgjh 'kgj dk vf/kxzg.k fd;k tk jgk gSA 'ks"k Lohdkj ugh gSA** 7. On the pleadings of the parties, the trial court has framed following issues: ^^1- D;k oknh o izfroknhx.k dh fVgjh 'kgj ds okMZ ua0 2 es [kljk ua0 220] 221 es Hkwe.Mk pkSd fLFkr gS] ftlds fd os la;qDr :i ls ekfyd gS vFkok mDr lEifRRk ds ekfyd flQZ izfroknhx.k gS\ 2- D;k fookfnr lEifRRk dk vf/kxzg.k gksus ls oknh dk ?kks"k.kkRed okn fujFkZd gks x;k gS\ 3- D;k mjksDr okn jsttwfMdsVk ¼izM;kax½ U;k; ls ckf/kr gS\ 4- D;k oknh dk okn dky ckf/kr gS\ 5- izfrdj tks oknh ikus dk vf/kdkjh gS\** 8. Plaintiff has filed per list 5Ga two documents, per list 15 Ga four documents, per list 42Ga one document. Towards the oral evidence, plaintiff himself and one Mehendra Singh have been examined as P.W.1 and P.W.2 respectively. 9. Defendants have filed per list 20 Ga three documents, per list 42-Ga one document. Towards the oral evidence, Vikram Singh and one Mukand Singh have been examined as D.W.1 and D.W.2 respectively. 10. While deciding the issue no. 1 as to whether at Ward No. 2 Khasra Nos. 220 and 221, Bhumanda Chauk, there is a property, of which plaintiff and defendants both are the owners, the trial Court has recorded the finding that the name of the plaintiff has not been recorded in the revenue records and when he came to know about the omission on the part of the revenue authorities, he has taken action to that effect. The trial Court has also recorded a finding that there is no evidence on record that the plaintiff has no concern with Khasra No. 220 and 221. 11. While deciding the issue no. 2 as to whether the property in question has been acquired, therefore, the suit of the plaintiff for declaration has become infructuous, the trial Court has recorded a finding to the following effect:- ^^bl lEcU/k es izfroknhx.k dh vksj ls ,d dkxt 45 &x tks fo'ks"k Hkwfe v/;kfIr vf/kdkjh] flpkbZ izFke] fVgjh ds }kjk mi egkizcU/kd] Vh0,p0Mh0lh0] ubZ fVgjh dks fy[kk x;k gSA mlesa ;g ckr Li"V vk;h gS fd fVgjh 'kgj ds okMZ ua0 2 ds [kljk ua0 220] 221 bu uEcjks esa fLFkr Hkwfe ds vtZu gsrq Hkwfe v/;kfir vf/kfu;e dh /kkjk &4 dk xtV izdk’ku fnukad 22&10&83 dks gqvk Fkk rFkk /kkjk &6 dk xtV izdk’k 6&10&93 dks gqvk Fkk] fdUrq [kkrk ua0 36 dk vHkh fu.kZ; dgh fn;k x;k RkFkk u gh izfrdj lEcfU/kr Hkw&Lokeh dks bl dk;kZy; ls forfjr fd;k x;k A bl rjg bl i= ls ;g fn[kk;h nsrk gS fd fookfnr lEifRRk dk dk;Z vf/kxzg.k ds lEcU/k esa iw.kZ :i ls ugha gqvk gSA vr% okn fcUnq la[;k& 2 mijksDrkuqlkj fuLrkfjr fd;k tkrk gSA** 12. While deciding the issue no. 4 as to whether the suit is time barred, the trial Court has recorded the findings that the cause of action had arisen in the year, 1981 and the suit has been filed on 19.8.1998, therefore, the suit of the plaintiff is time barred. Thus, this issue has been decided accordingly. 13. While deciding the issue no. 5 with regard to relief, the trial Court has recorded a finding that the plaintiff is not entitled to get any relief and the suit of the plaintiff has been dismissed on 12.9.2000. 14. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal being Civil Appeal No. 4 of 2000 Shoorvir Singh Vs. Vikram Singh and others. The Appellate Court has also formulated the points of controversy and has recorded a findings to the following effect: ^^ bl izdkj mijksDr rF;ks ls ;g Li"V gksrk gS fd [kkrk la[;k & 220 o 221 dh lEifRRk ikfjokfjd lEifRr ls vftZr dh x;h gS rFkk og ikfjokfjd lEifRr dk Hkkx ekuk tk;sxkA ;g okn fcanq Hkh oknh ds i{k es fuf.kZr fd;k tkrk gSA vr% mijksDr foospuk ls Li"V gS fd ;g vihy Lohdkj fd;s tkus ;ksX; gSA** 15. As will appear from the above, a finding has been recorded that since Khata Nos. 220 and 221 have been acquired by the joint Hindu Family. 16. In view of the above, question of law arises:- 1) Whether at any point of time, there has been a surrender on the part of the plaintiff as has been relied upon by the trial Court? 2) If there was no surrender on the part of the plaintiff whether the plaintiff has ever exercised his rights in respect of his share in the property in dispute. the property in dispute?” 17. In view of the aforesaid, the matter is sent back to the appellate Court for recording findings on the aforesaid question of law. Substantial questions of law decided accordingly. 18. Consequently, Appeal is allowed and the matter is remanded to the appellate Court for deciding the aforesaid question. No order as to costs. (Rajesh Tandon, J.) 27.3.2008 Rathour