IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2436 of 2009 (O&M) Date of Decision: 15.1.2010 Bhullan. ....... Appellant. Versus Mehar Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri J.S.Saneta, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.7169-C of 2009 The application is allowed and the appellant is permitted to make up the deficiency in the court fee. C.M.No.7170-C of 2009 For the reasons stated therein which are supported by the affidavit of the counsel for the appellant, the application is accepted and delay of 13 days in the filing of the appeal is condoned. R.S.A.No.2436 of 2009 The plaintiff-appellant has filed this Regular Second Appeal against the judgments and decrees dated 16.3.2007 and 29.1.2009 passed R.S.A.No.2436 of 2009 (O&M) -2- .... respectively by the Civil Judge (Junior Division), Panipat (hereinafter described as `the trial Court') and the Additional District Judge, Panipat (referred to hereinafter as `the first appellate Court') whereby his suit and the appeal have been dismissed. The appellant instituted the civil suit for declaration with a prayer for permanent injunction and for possession as a consequential relief. It was averred by him that his father-Shiba along with his brother-Baldeva was the owner in possession of some agricultural land which had been described in the plaint and as mentioned in jamabandi for the year 1932-33. After the death of Baldeva, his wife-Smt.Gomti, performed kareva marriage with Shiba. Thus, the property which devolved upon Smt.Gomti after the death of her husband, was inherited by Shiba and mutation no.717 was entered in that regard. Thus, Shiba became exclusive owner in possession of the land in question. It was further averred that after marriage with Smt.Gomti, Shiba shifted to the house of his in-laws in village Garhi Mimla, District Muzaffarnagar (U.P.) and settled there. He used to visit village Nanhera where the land in dispute is situated and get the same cultivated on batai. One Chhaju, father of defendant no.1-Harpal Singh (since deceased and now represented by respondent nos. 1 to 6) also used to take care of the said land. In the year 1934-35, Shiba fell ill and stopped visiting village Nanhera and ultimately expired on 8.1.1936. It was alleged that Chhaju, who was Lambardar of the village Nanhera and was in a dominating position got mutation no.722 entered in his name qua the land in dispute alleging that Shiba had orally sold the same for a consideration of Rs.250/-. R.S.A.No.2436 of 2009 (O&M) -3- .... It was pleaded that the alleged oral sale was null and void, as also the mutation sanctioned on the basis thereof. It was further pleaded that since the property was of value of more than Rs.100/-, the transaction required compulsory registration. It was alleged that the mutation was got sanctioned by Chhaju in collusion with the revenue officials and that Chhaju himself owned 12 Bighas of land at village Nanhera and after consolidation, he was allotted total land measuring 43 kanals 6 marlas in lieu of his land and the land in dispute, fully detailed in paragraph 5 of the plaint and depicted in jamabandi for the year 1990-91 which also shows that out of the said land, 2/3rd share was owned by Shiba and 1/3rd by Chhaju. The appellant had averred that at that time of death of his father in the year 1936, he was minor. It was further averred that after the death of Chhaju, Harpal Singh inherited his property. The appellant had alleged that he tried to persuade Harpal Singh to accede to his claim, but to no avail, compelling him to institute the suit. Upon notice, Harpal Singh had appeared and contested the suit by filing a written statement on the grounds of maintainability, locus standi, limitation, cause of action and suppression of material facts. On merits, it was averred that Shiba had sold the land in question to Chhaju on 19.2.1935 and this purchase was reported to the Patwari, who made entry in this regard in the revenue records on 5.3.1935 and Kanungo also confirmed the sale on the same day by way of Mukabla. It was further averred that this fact was in the knowledge of the appellant. It was pleaded that in the year 1970, a Panchayat was convened where the appellant had made a grievance of the R.S.A.No.2436 of 2009 (O&M) -4- .... sale and there also, this fact was confirmed, but he did not challenge the same. It was next pleaded that Shiba had never migrated to Uttar Pradesh and was residing in village Nanhera. The sale and consequent ownership & possession of the suit property were, in this manner, were sought to be defended. Yash Pal, son of Smt.Parni, daughter of Shiba, who was impleaded as defendant no.2, also filed his separate written statement and prayed that the suit be dismissed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner of 2/3 share of land measuring 43 K-6M entered in Khewat no.94/90, Khatoni no.12, Rect.no.53, Killa no.10/1, 11, 12, 13,14/1, rect.no.54, Killa no.6, 15, Rect. No.62, Killa No.3/3 situated at village Nanhera, Tehsil Smalkha, Distt. Panipat as per Jamabandi for the year 1990-91?OPP 2. In case issue no.1 is decided in favour of plaintiff, then whether plaintiff is also entitled for the injunction as prayed for?OPP 3. Whether suit filed by the plaintiff is not maintainable in the present form?OPD 4. Whether defendantno.1 is in possession of the suit land since the time of his fore-fathers?OPD 5. Relief. R.S.A.No.2436 of 2009 (O&M) -5- .... Both the Courts below have dismissed the suit and the appeal of the appellant, which has resulted in the filing of the instant appeal. Assailing the impugned judgments, learned counsel for the appellant contended that the findings recorded by the Courts below are erroneous. It was further contended that the suit was dismissed on the ground that the sale in question had been challenged belatedly, but the Courts below have failed to appreciate the fact that the appellant was minor at the time of sale and, therefore, he could have assailed the same at any time, more-so when the claim was made on the basis of inheritance. Learned counsel for the appellant argued that the rightful claim on the basis of inheritance can be set up at any point of time and,therefore, the findings of the Courts below are perverse. He contended that there was no evidence regarding oral sale and consequent transfer of the suit property in favour of Harpal Singh. I have thoughtfully considered the contentions/argument of the learned counsel for the appellant and have perused the impugned judgments. In my opinion, the appeal does not deserve to succeed. According to his own testimony while appearing as PW1, the appellant stated that he was about six years of age in the year 1936 when his father had died on 8.1.1936. If that is taken to be correct, then he attained majority in the year 1948. The right to challenge the sale of the land in question, if at all, accrued to him when he attained the majority in 1948, but the suit was preferred in the year 2003. The Courts below were, therefore, right in observing that the suit was hopelessly barred by limitation. Even after R.S.A.No.2436 of 2009 (O&M) -6- .... attaining majority, the appellant did not challenge the sale in question for as many as 55 years. It is to be noticed that the suit was for declaration and consequential relief as well and even if it is assumed that he had come to know about the ownership of his father over the disputed land in the year 1974 as pleaded by him, even then, the suit could have been instituted within twelve years of the same. That apart, when the relief of possession was claimed, the appellant failed to affix the requisite court fee as well. Lastly, the plea that the sale was not proved, does not lie in the mouth of the appellant because he himself pleaded this fact admitting that the oral sale was effected in favour of father of Harpal Singh. In any eventuality, if the suit was itself barred by limitation, there is no reason to differ with the concurrent findings recorded by the Courts below. No question of law, much less substantial question of law, is shown to have arisen for consideration of this Court. Dismissed. January 15,2010 ( Mahesh Grover ) “SCM” Judge