Daya Singh & Anr vs Gurdev Singh(Dead) By Lrs. & Ors

3. The plaintiffs/appellants were the owners and in joint possession of 1/9th share in the entire land measuring about 286 Kanals and 5 Marlas of Khewat No.359 Khatoni No.702- 710 situated in village Sukhchain falling under Sirsa Tehsil. Two other individuals named Jang Singh and Jangir Singh were the owners of 2/3rd share in the said total land. The appellants and the two individuals were co-owners in the said total land. These two individuals, namely, Jang Singh and Jangir Singh had sold their entire 2/3rd share to the respondents on 7th of June, 1965 for a sale consideration of Rs.33,500/-. The said share of land was already under mortgage with the respondents. In 1965, the respondents got their names mutated in the relevant record of 3 rights as owners of the area purchased by them as indicated in the aforesaid sale deed. The appellants filed a pre-emption suit being Pre-emption Suit No.377 of 1966 in the Court of the Subordinate Judge, Class II, Sirsa against the respondents for possession of 2/3rd share sold to them and got it decreed in their favour by the trial court by a judgment and decree dated 30th of November, 1967.

4. The respondents appealed against the aforesaid decision before the Appellate Court, namely, District Judge, Hissar who dismissed their appeal on 15th of June, 1968. Feeling aggrieved against the aforesaid concurrent judgments of the courts below, a second appeal was filed before the Punjab and Haryana High Court which was dismissed on 26th of May, 1972. Subsequent to the dismissal of the second appeal, the appellants and the respondents compromised their dispute and such compromise was reduced into writing on 26th of October, 1972. According to this compromise, the appellants were entitled to retain half of the 2/3rd share of the land in dispute and the respondents were to retain the other half. The respondents admitted in their compromise deed that the appellants had taken possession of 4 their share of land. When this compromise was presented before the Division Bench of the High Court of Punjab and Haryana in Letters Patent Appeal which came to be registered as LPA No.86 of 1973, the Division Bench of the High Court disposed of the said Letters Patent Appeal in terms of the said compromise petition. From the records, it would also be evident that the report of the Kanoongo dated 16th of January, 1976 and the Roznamcha No.252 dated 14th of April, 1996 recorded that the possession of 95 Kanals and 8 = Marlas had been delivered to the appellants. After such compromise was effected, the appellants thereafter filed a suit for declaration that they were in possession as owner of 1/9th share and in joint possession of half of 2/3rd share (thus totaling of 4/9th shares) of land measuring 286 Kanals and 5 Marlas of Khewat No.359 Khatoni No.702-710 along with respondents and the entries in the revenue record of rights should only be corrected in the Court of the Senior Subordinate Judge, Sirsa. In paragraphs 15 and 16 of the plaint of this suit which concerned the question of limitation, the plaintiffs/appellants had averred as follows :

On the basis of the averments made as noted herein above, the plaintiffs/appellants filed the aforesaid suit for the following reliefs:

5 marlas comprised in khewat No.359, Khatoni NO.702 to 710, all land as per jamabandi for the year 1985-86, situated in the area of village Sukhchain, Tehsil and Distt.Sirsa and that the revenue records showing the defendants to be the owners of 12/18th share of 2/3rd share in the aforesaid land is wrong and is hence liable to be corrected in favour of the plaintiffs, and

5. The respondents entered appearance and filed written statement denying the material allegations made in the plaint. Leaving aside the other facts in the present case, we may state here that a specific defence taken by the respondents in their written statement was to the effect that the suit was barred by limitation in view of Article 58 of the Act because the suit having been filed after about 18 years of entering into the compromise by the parties in the High Court in the Letters Patent Appeal, must be filed within three years from the date of entering into the alleged compromise by the parties. Accordingly, the respondents alleged that the suit must be dismissed on the ground of limitation. We make it clear that since the only 7 question involved in this appeal is relating to the question of limitation, we have not considered the other aspects of the matter in this judgment. After the parties had entered appearance and led evidence in support of their respective cases also on the point of limitation, the trial court held, inter alia, that the suit was barred by limitation in view of Article 58 of the Act as the cause of action arose in 1972 i.e. on the date of compromise entered into by the parties. Accordingly, the suit was dismissed by the trial court also on the ground of limitation. Feeling aggrieved, the plaintiffs/appellants filed an appeal before the Additional District Judge, Hissar who also dismissed the appeal of the appellants, inter alia, holding that the suit was barred by limitation. Consequent thereupon, the appellants approached the High Court in second appeal and the High Court also dismissed the appeal holding that under Article 58 of the Act a declaratory suit must be filed within three years of arising the cause of action for filing the suit. The High Court held in the impugned judgment that the cause of action arose when the parties had entered into the compromise, that is, on 26th of October, 1972 and, therefore, the suit having been filed 8 on 21st of August, 1990 was barred by time since it was filed after 18 years from the date of the said compromise.

c) That the plaintiffs who are already the owners of 2/18th share of 1/9th share in the khewat have thus become the total owners of 4/9th share in the entire khewat No.359 and that the plaintiffs are entitled to get the mutation of change of ownership sanctioned accordingly in their favour, may please be passed in favour of the plaintiffs and against the defendants with cost of this suit."

11. In view of our discussions made herein above, the impugned judgment of the High Court on the question that the suit was barred by limitation cannot be sustained. Therefore, the judgment of the High Court is set aside and the matter may be remitted back to the High Court for decision on merits. The High Court is requested to dispose of the second appeal at an early date preferably within six months from the date of supply of a copy of this order to it.

12. Accordingly, the impugned order of the High Court is set aside. The appeal is allowed to the extent indicated above. There will be no order as to costs.