RSA No.3418 of 2005 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3418 of 2005 (O&M) Date of decision: February 1, 2010. Tej Singh & Ors. ...Appellant(s) v. Shakuntla & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Rakesh Nehra, Advocate, for the appellant(s). Shri C.B. Goel, Advocate, for the respondents. Rakesh Kumar Garg, J. (Oral): This is plaintiffs' second appeal challenging the judgment and decrees of the courts below whereby their suit for declaration and permanent injunction to the effect that defendant No.1 had no right or interest left in the property in dispute and they are owners in possession of half share of the property, was dismissed. As per the pleadings, Nand Land, father of the appellants, was brother of Prem Singh and Ram Sarup, sons of Mukh Raj. After the death of Mukh Raj, his three sons, namely, Nand Lal, Prem Singh and Ram Sarup inherited his land measuring 44 bighas 15 biswas bearing khewat No.136/164 khata No.384, khasra Nos. 107,108, 110, 115, 116, 123, 125, 126, 129, 130, 821, 822, 823, 824, 1270, 1276, 1277, 1799, 1800, 1801, 1802, 1809, 1812, 1813, 1815, 1832, 1833, 1834, 1944, 1945, 1948, 1949, RSA No.3418 of 2005 -: 2 :- 1950, 2040, 2041, 2070, 2325 and 2419 situate in village Jahangirpur, Tehsil and District Jhajjar. After consolidation of holdings, land bearing khewat No.194/185 khata 293, 294, kila nos.15/5, 15/6, 15/15, 15/16, 15/24/2, 15/25, 16/11/16/20, 16/21/1, 35/4, 35/5, 35/6, 35/7, 35/14, 35/15/1, 40/22, 40/28, 65/11/2, 65/12, 65/13, 65/17, 65/18, 65/19/1, 65/22, 65/23, 65/24, 67/1, 67/2, 67/9/2, 67/10, 67/29, 68/6, 73/4, 73/5/1, 73/6/2, 125/1, 125/10, 125/11, 126/6, 466, 802, 803 and 65/19/2 measuring 246 kanals situate in village Jahangirpur, Tehsil and District Jhajjar were allotted in lieu of the land mentioned above. Ram Sarup had died issueless in the year 1939 leaving behind his widow Smt. Bakhtawari, who inherited his 1/3rd share in the suit land as life estate and Mutation No.1172 dated 30.10.1939 was sanctioned in her favour. She contracted kareva marriage with Prem Singh in the year 1940 who was brother of the deceased Ram Sarup s/o Mukh Ram. Prem Singh died in the year 1953. The parties are Jats by caste who are governed by custom of Rohtak District and as per their custom, a widow who contracted kareva marriage, forfeits her right of life estate in the property of her previous husband. Thus, after her kareva marriage with Prem Singh in the year 1940, she had forfeited her life estate. That being so, Nand Lal and Prem Singh had inherited the estate of Ram Sarup in equal shares, meaning thereby they had become owners in possession of half share each. However, the revenue entries continued to depict wrongly ownership and possession of Smt. Bakhtawari qua 1/3rd share after the year 1940. She wanted to transfer her 1/3rd share in the suit land without having any right, title or authority to do so. She was asked not to do so but in vain. Hence, this suit. RSA No.3418 of 2005 -: 3 :- The contesting defendant-respondents filed a joint written statement in which various preliminary objections were raised. On merits, it was submitted that Ram Sarup had died issueless leaving behind his widow Smt. Bakhtawari, who had inherited 1/3rd share in the suit land but it was denied that having performed kareva marriage with Prem Singh, she had forfeited her share. It was also asserted that the parties to the lis are governed by Hindu law in matters of alienation and succession according to which a widow does not forfeit her right in the estate of her deceased husband even after her remarriage with any other male member of the family of her deceased husband and she was the absolute owner of the property and the plaintiffs had no right, whatsoever, and the suit was liable to be dismissed. On the pleadings of the parties, the following issues were framed:- 1. Whether the parties to the suit are related to each other as given in pedigree-table in para No.1 of the plaint? OPP 2. Whether Mukh Ram was owner in possession of the agricultural land as detailed in para No.2 of the plaint and it was inherited by his sons namely Nand Lal, Prem and Ram Sarup? OPP 3. Whether the defendant No.1 has extinguished her 1/3rd share in the land inherited from Ram Sarup after entering into karewa marriage? OPP 4. Whether the parties to the suit are Jats and are governed by Agricultural Custom with regard to forfeiture of right of widow in the estate of her deceased husband after entering RSA No.3418 of 2005 -: 4 :- into karewa marriage? OPP 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD 7. Whether the suit is not maintainable in the present form?OPD 8. Whether the defendants are entitled to special costs under Section 35-A CPC? OPD 9. Relief.” After hearing arguments of the learned counsel for the parties and perusing the evidence on record, the trial court dismissed the suit with costs. It may be relevant to mention that issues No.1 and 2 were not contested by the defendants-respondents whereas issues No.5 and 8 were not pressed by the respondents. Pleadings on issues No.3 and 4 were returned in favour of plaintiff-appellants, however, issues No.6 and 7 were held against the plaintiff-appellants. Thus, plaintiffs were non-suited holding that suit was not maintainable and appellants were estopped from filing the suit by their conduct. While deciding issues nO.6 and 7, the trial court observed as under:- “The learned counsel for the defendants forcefully contended that even if it is admitted for a while for the sake of arguments that the defendant No.1 had forfeited her 1/3rd share in the suit land inherited from her deceased husband after entering into karewa marriage even then present suit was not maintainable and the plaintiffs were RSA No.3418 of 2005 -: 5 :- estopped from filing the present suit by their and conduct. He pointed out that it is an admitted case of the parties that the defendant No.1 had entered into karewa marriage with Prem i.e. one of the two real brothers of her deceased husband in the year 1940 and given the fact that sanctioning of mutation No.1172 in favour of the defendant No.1 on 30.10.1939 was well within the knowledge of the aforesaid two brothers of the deceased, the suit for declaration should have been instituted by any of the aforesaid two brothers of the deceased regarding 1/3rd share of the deceased in the suit property within three years when the right to sue first accrued to them in the year 1940 i.e. to say that the suit should have been instituted by any of the nearest LRs of the deceased till the years 1943 and this court finds merit in the aforesaid contention of the learned counsel for the defendants in view of the proposition of law laid down in citation Smt. Sewati Devi versus Kanti Parsad and others AIR, 1973, P&H, 126 wherein it has been held that estoppel as envisaged under section 115 of the Indian Evidence Act operates when the claim was admitted, a mutation was allowed in his name by the plaintiff and the plaintiff cannot be allowed to change the position after lapse of many years. The aforesaid proposition of law is fully applicable in the instant case because in the instant case the plaintiffs have instituted the present suit after the lapse of 53 years despite having full knowledge that the RSA No.3418 of 2005 -: 6 :- defendant No.1 had forfeited her right regarding 1/3 share in her deceased husband's share in the suit property in the year 1940 after having entered into a karewa marriage with said Prem one of the real brothers of the deceased. In turn, it clearly means that the plaintiffs did admit the mutation in favour of the defendant No.1 and allowed the said mutation to continue in her name for the last 53 years which in turn certainly operates as estoppel against them judging from any angle. It is also an admitted fact within both the parties that the land consolidation had taken place in the village wherein the suit land was allotted new numbers as detailed in Para No.8 of the plaint but even at that time none out of the two brothers of the deceased had raised any objection to the effect that 1/3 share of her deceased husband was still wrongly and illegally running in the name of the defendant No.2 Smt. Bakhtawari. This conduct of the two brothers of the deceased especially Nand Lal through whom the plaintiffs are claiming their title being his sons clearly shows that both the brothers aforesaid had in fact admitted the defendant No.1 to be the absolute owner in possession regarding 1/3 share of their deceased brother. Had it not been so, Nandlal the father of the plaintiffs especially himself must have had raised objection or challenged the revenue entries depicting the defendant No.1 to be the owner in possession of her deceased husband's 1/3 share. RSA No.3418 of 2005 -: 7 :- Again admittedly the said Nand Lal died in the year 1973 and during his lifetime he did not challenge the revenue entries depicting defendant No.1 to be the owner in possession of her deceased husband's 1/3 share despite having full knowledge about the same. It again served as an estoppel against the said Nandlal and the plaintiffs who are claiming their title over the suit land through their father namely the said Nand Lal as they cannot claim better title over the suit land than their predecessor-in-interest namely Nandlal had. The plaintiff No.1 Tej Singh in the capacity of PW1 in his cross-examination has also admitted that when his father Nandlal died in the year 1973 he bequeathed his 1/3 share in the suit land in the name of his sons i.e. the plaintiffs by the dint of a will pursuant to which the mutation regarding share of their deceased father entered in their names i.e. in the names of the plaintiffs and that even at that point of time the plaintiffs did not raise any objection regarding the defendant No.1’s 1/3rd share in the suit land. Then again it was admitted by the plaintiff No.1 as PW1 in the later part of his cross-examination that they had obtained loan in the year 1973 for purchase of a tractor and had obtained revenue papers in that connection from the Patwari for submission with the bank and that even at that time also they did not raise any objection regarding the defendant No.1’s share in the suit land. Thus, in view of RSA No.3418 of 2005 -: 8 :- the aforesaid admissions of the plaintiff’s sole witness as PW1, who is not less a person than the plaintiff No.1 himself to the effect neither their deceased father namely Nandlal through whom they are claiming their title over the suit land nor they themselves had ever challenged the revenue entries depicting the defendant No.1 to be the owner in possession of the land regarding her deceased husband’s 1/3 share in the suit land till the period of long 53 years, this Court has no other option except to draw an irresistible conclusion inevitably and irresistibly with conclusion certainly that the plaintiffs had been treating the defendant No.1 to be the absolute owner in possession of the suit land to the extent of her deceased husband's 1/3 share and as such they are hopelessly estopped from filing the present suit assailing the defendant No.1’s title over the suit land to the extent of her deceased husband’s 1/3 share. Learned counsel for the plaintiffs in this connection has contended that since the plaintiffs had been cultivating the suit land to the extent of their ½ share prior to the filing of the present suit continuously, so there was no necessity for them to challenge the revenue entries detecting the defendant No.1 to be owner in possession of the suit land to the extent of her deceased husband's 1/3 share as the plaintiffs were required to assail the aforesaid revenue entries only when their share in the suit land comes under a cloud. The learned counsel for the plaintiffs further RSA No.3418 of 2005 -: 9 :- contended that plaintiff’s ½ share in the suit land came under a cloud only when the defendant no.1 tried to transfer the suit land in favour of her sons by dint of civil court decree and immediately thereafter they filed the present suit but in the considered view of this Court no credence at all can be accorded to the aforesaid contention of the learned counsel for the plaintiffs because as discussed above, the plaintiffs themselves had been treating the defendant No.1 to be the absolute owner in possession of the suit land to the extent of her deceased husband's 1/3 share therein for the last 53 years. Moreover, it has been admitted by the plaintiff No.1 himself in the capacity of PW1 that they had been living jointly and had got separated only in the year 1980. Thus, given the well settled proposition of law that every co-sharer as admitted to be in possession of every inch of the land according to his/her share, the defendant No.1 again will have to be treated to be the owner in actual physical possession of the suit land in the capacity of co- sharer to the extent of her respective 1/3 share therein.” Feeling aggrieved, the plaintiffs filed an appeal before the lower appellate court and the same was also dismissed. Learned counsel for the appellants has vehemently argued before this court that the courts below have gravely erred in non-suiting the appellants on the basis of findings on issues of maintainability and estoppel by their act and conduct. It was further argued by him that the courts below ignored the fact that the period of limitation started to run from the date RSA No.3418 of 2005 -: 10 :- when there was some real threat from the defendants of denying the title of the plaintiffs or for their dispossession; the mere wrong entry in the revenue record does not give a right to the plaintiffs to file a suit unless there was some threat to the plaintiffs of their dispossession and, thus, the findings of the courts below on issues No.6 and 7 are liable to be set aside and they are entitled to the decree as prayed. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following questions of law arise in this appeal:- 1. Whether the defendant No.1 has extinguished her 1/3rd share in the land and the plaintiffs are owner of the half share of the land in dispute? 2. Whether the suit of the plaintiffs is within limitation or not? 3. Whether the wrong entry in the revenue record gives a cause of action to the plaintiffs to file the present suit? 4. Whether there is total misreading of evidence by the courts below?” However, on the other hand, learned counsel for the respondents has vehemently argued that the courts below have rightly held that suit was not maintainable and the plaintiff-appellants are estopped by their act and conduct from filing the present suit as admittedly, the mutation was sanctioned in favour of defendant No.1 on 30.10.1939 which was well within the knowledge of the appellants and their predecessors in interest. The present suit has been filed in the year 1990, i.e., after 50 years and during the aforesaid period, the appellants have never asserted their right and, thus, the appeal is liable to be dismissed. RSA No.3418 of 2005 -: 11 :- I have heard learned counsel for the parties and perused the impugned judgment and decrees. Admittedly, Ram Sarup died in the year 1939 and his estate was inherited by defendant No.1 – Smt. Bakhtawari and mutation No.1172 was sanctioned in her favour vide order dated 30.10.1939. She contracted second marriage with Prem Singh, real brother of her deceased husband in the year 1940. It is again not disputed that Nand Lal, father of the plaintiff- appellants died in the year 1973 and he did not challenge the mutation of inheritance of Ram Sarup in favour of defendant No.1 during his life time. Similarly, Prem Singh, second husband of Smt. Bakhtawari, had died in the year 1953 and he also during his life time did not challenge the mutation in favour of Smt. Bakhtawari. The appellants have stepped into the shoes of Nand Lal being his sons. It may also be noticed at this stage that the appellant Tej Singh, while appearing as PW1, admitted that when his father Nand Lal had died in the year 1973, he had bequeathed his 1/3rd share in the suit land in the name of his sons, i.e., the appellants by dint of a will pursuant to which mutation regarding share of Nand Lal was entered in their favour. Even at that time, none of the appellants had raised any objection regarding 1/3rd share of Smt. Bakhtawari in the suit land. It is further admitted by Tej Singh PW1 that the appellants had taken a loan in the year 1973 from the Bank for purchase of a tractor and had obtained the revenue papers on that account from the Patwari. At that time also, no objection was raised by the appellants regarding 1/3rd share of Smt. Bakhtawari in the suit land. In these circumstances, no fault can be found with the findings recorded by the courts below to the effect that the appellants had been treating Smt. Bakhtawari to be the absolute owner in possession of the suit RSA No.3418 of 2005 -: 12 :- land to the extent of 1/3rd share of her deceased husband and as such they were estopped from filing the suit. It is also not in dispute that the present suit was filed by the appellants in the year 1990, i.e., after 50 years of delay from the date when for the first time cause of action arose in favour of the appellants in the year 1940 and limitation started running against them on the date when Smt. Bakhtawari had contracted kareva marriage with Prem Singh. Since it cannot be disputed that the plaintiff-appellants were in the knowledge of the mutation entered in favour of Smt. Bakhtawari and they and their predecessors in interest had failed to challenge the same for 50 years, no fault can be found with the findings of the courts below to the effect that suit filed by the appellants was not maintainable being hopelessly barred by limitation. Thus, no material infirmity or illegality can be found in the judgment and decrees passed by the courts below. The findings returned by the courts below are accordingly upheld. No other point was urged. No substantial question of law arises in the facts and circumstances of the case. Dismissed. February 1, 2010. [ Rakesh Kumar Garg ] kadyan Judge