Regular Second Appeal No.2702 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2702 of 2009 Date of decision:- 09.12.2010 Brahma ...Appellant Versus Sant Ram ...Respondent CORAM: HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Manish Soni, Advocate for the appellant. Mr. Deepak Balyan, Advocate and Ms. Anita Balyan, Advocate for the respondent. GURDEV SINGH J.(Oral) The respondent-plaintiff, Sant Ram, filed suit for declaration to the effect that he is owner in possession of 1 Kanal 6 Marlas of land, being 1/3rd share of the land measuring 3 Kanals 19 Marlas, situated in the Village Dandlawar, Tehsil Naraingarh District Ambala (now Tehsil and District Panchkula), fully detailed in para No.2 of the plaint whereas the appellant- defendant is the owner in possession of 0-5 Marlas bearing Khasra No. 126 situated in that village and in the alternative for possession of the said land by way of demolition of construction, if any, raised by the defendant and also for permanent injunction restraining the defendant, his agents and representatives from interfering in his possession by raising construction on that land or alienating the same. The suit was decreed by Additional Civil Judge (Senior Division) Panchkula, vide judgment and decree dated 08.11.2008. The defendant filed the first appeal against that judgment and decree, which was dismissed by Additional District Judge (Adhoc) Panchkula vide judgment and Regular Second Appeal No.2702 of 2009 -2- decree dated 11.5.2009. Now he has preferred this second appeal against those judgments and decrees. The plaintiff averred in his plaint that in the year 1988 he and the defendant exchanged their lands and in pursuance of that exchange he executed sale deed dated 19.12.1988 in favour of the defendant regarding 1-3rd share in the land measuring 0-15 Marlas bearing Khasra No.126 for a sale consideration of Rs.400/-. Similarly, the defendant executed the sale deed dated 19.12.1988 in his favour in respect of the land in dispute for a consideration of Rs.2000/-. On the basis of that exchange and sale deeds, he became owner of the land in dispute whereas the defendant became owner of the other land measuring 5 Marlas. Mutation No.973, on the basis of the sale deed dated 19.12.1988, was entered in his favour whereas mutation No.974, on the basis of the other sale deed was entered in the name of the defendant. He remained out of station and about 3 years before filing of the suit came to know that for want of prosecution the revenue officials had dismissed the mutation. Thereafter he got mutation No.1158 entered on 04.2.2002 and the same was dismissed by the Assistant Collector 1st Grade on 28.11.2003 on the ground that the sale deed was about 15 years old and as such the mutation cannot be sanctioned in his favour. He was given liberty to approach the Civil Court. The suit was contested by the defendant. In his written statement he admitted the factum of exchange and that he had received 5 marlas of land from the plaintiff in that exchange. He denied the other contentions made in the plaint and pleaded that the said 5 marlas of land was exchanged by him for 10 marlas of land in Khasra No.24//4. No such sale deed dated 19.12.2008 was executed by him in favour of the plaintiff and the same is a result of fraud, played upon him by the plaintiff. He also took up preliminary objections to the effect that the suit was not maintainable and was barred by time and that the plaintiff was estopped from filing the same by his act and conduct. Regular Second Appeal No.2702 of 2009 -3- From the pleadings of the parties, following issues were framed by learned trial Court:- “1. Whether the respondent is owner in possession of 1K- 6M being 1/3rd share of the land 3K-19M of Khasra No.28 and 29 as per Jamabandi for the years 1983- 84? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for permanent injunction mentioned in the plaint? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPP 4. Whether the plaintiff has concealed the true and material facts? OPD 5. Whether the plaintiff has no cause of action and locus- standi to file the suit? OPD 6. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD 7. Relief.” After going through the evidence produced by the parties in support of their respective contentions and hearing learned counsel on their behalf, the learned trial Court decided all the issues in favour of the plaintiff, resultantly, decreed his suit. I have heard learned counsel for the parties. It has been submitted by counsel for the defendant that the defendant took up preliminary objection in his written statement that the suit of the plaintiff was barred by limitation. He claimed ownership on the basis of the sale deed dated 19.12.1988 whereas the suit was filed on 02.6.2004 after expiry of the prescribed period of limitation of three years. No finding was recorded by the trial Court as to whether the suit was within limitation or not. However the first Appellate Court decided the point of limitation but illegally decided the same in favour of the plaintiff. According to him substantial question of law arises in the present appeal as to, whether the suit was filed by the plaintiff within limitation. Regular Second Appeal No.2702 of 2009 -4- There is no denial of the fact and trial Court committed an illegality by not recording the finding as to whether the suit was within limitation or not. though, specific plea had been taken by the defendant that the suit was barred by limitation. Otherwise also by virtue of Section 3 of the Limitation Act, 1963 it was the duty of the trial Court to satisfy itself whether the suit was filed within limitation or not. However, as has been submitted by counsel for defendant himself, that point of limitation was decided by the first Appellate Court. It cannot be said that the suit of the plaintiff was barred by limitation. The suit was filed by him on the basis of his title. The period of limitation started from the date when the defendant denied his title in the land in dispute. It is not the case of the defendant that he is in possession of land in dispute nor it is his case that is claiming adverse possession against the plaintiff. In the alternative the plaintiff has filed the suit for possession on the basis of title. No limitation is prescribed for a suit for possession based on title, as per Article 64 of the Limitation Act. There is no illegality in the finding recorded by the first Appellate Court and no substantial question of law is involved in the present appeal. The same is dismissed accordingly. December 09, 2010 ( GURDEV SINGH ) Vijay Asija JUDGE