Himachal Pradesh High Court
Bhagat Ram Died (Through Lrs) vs Of on 29 August, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 19 of 2007
Reserved on : 16.08.2016
.
Date of decision: 29/08/2016
Bhagat Ram died (through LRs) ..Appellant/defendant.
Versus
of
Soma Devi and others ..Respondents/plaintiffs.
Coram
rt
The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting?1. Yes.
For the appellant: Mr. K.D.Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate.
For the respondents: Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate.
Sureshwar Thakur, J:
This appeal stands directed against the impugned judgement of the learned District Judge, Hamirpur, Himachal Pradesh, whereby it allowed the appeal preferred before it by the plaintiff who stood aggrieved by the judgement and decree of the learned trial Court whereunder the latter dismissed his suit.1
Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:06:03 :::HCHP
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2. The facts necessary for rendering a decision on the instant appeal are that the suit by virtue of amended plaint, .
plaintiff had claimed a decree for declaration qua the suit land on the ground that the suit land was owned and possessed by Shri Govind, father of the plaintiff. The of defendant when was of 13 days old was adopted as son by one Nihala in accordance with the agricultural custom of rt Tappa Dhatwal, District Hamirpur, and as such the defendant was brought up by his adoptive father Nihala being adopted son and had no legal right whatsoever over the suit land which was owned and possessed by Shri Govind, natural father of defendant and father of plaintiff. It was further pleaded that after the death of Govind, plaintiff is in cultivating possession of the suit land and defendant had virtually abandoned his right in the suit land on account of property got by him from his adoptive father but inadvertently the name of defendant was also incorporated alongwith plaintiff in the revenue record showing him as co-
owner of the suit land and as such the entries in favour of defendant in the revenue records are wrong.
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3. The defendant filed written statement and thereby resisted and contested the suit of the plaintiff by taking .
preliminary objection qua maintainability, limitation, estoppel and suppression of material facts. On merits, the defendant termed the averments made in the plaint as wrong and of incorrect and pleaded that the revenue entries incorporated in his favour regarding the suit land were correct. It was rt claimed that he is owner in possession of the land situated in Tika Ghulera, Mouza Dhatwal to the extent of ½ share. It was pleaded that the revenue entries in favour of the defendant were in the knowledge of the plaintiff. The defendant was never adopted by Shri Nihala nor any mutation of inheritance was attested of the land by Nihala in his favour. On the strength of said averments, the defendant claimed dismissal of the suit.
4. Replication to the written statement filed wherein the averments made in the written statement were controverted and those made in the plaint were re-asserted.
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5. On the pleadings of the parties, the trial Court on 5.5.2000 struck following issues inter-se the parties at .
contest:-
1. Whether the plaintiff is the exclusive owner in possession of the suit land as alleged? OPP.
2. Whether revenue entries are wrong and illegal, as of alleged? OPP.
3. Whether the defendant was adopted by Shri Nihala, rt as alleged. If so, its effect? OPP.
4. Whether the plaintiff is entitled to the injunction prayed for? OPP.
5. Whether the plaintiff is entitled to a decree for possession in the alterative as claimed? OPP.
6. Whether the suit is not maintainable in the present form? OPD.
7. Whether the suit is time barred? OPD.
8. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD.
9. Whether the plaintiff has not come to the Court with clean hands as alleged. If so, its effect? OPD.
10. Whether the defendant got the property of Shri Nihala by way of gift, as alleged, if so, its effect?OPD.
11. Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD.::: Downloaded on - 15/04/2017 21:06:03 :::HCHP
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12. Whether the defendant is entitled to special costs under Section 35-A CPC, as alleged. If so, their .
quantum? OPD.
13. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of of the plaintiff. However, the learned First Appellate Court allowed the appeal preferred therefrom before it by the rt plaintiff.
7. Now the defendant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 5.10.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:-
"1. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence as also the Kangra Customary Law which has vitiated the findings?
2. Whether the suit of the plaintiff was within limitation and the plaintiff was entitled to challenge the mutation of inheritance of Govinda which was attested on 8.2.1917 in the year 1966 when the property was in possession of the ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...6...
defendant and had been separted in Consolidation proceedings in 1962?
3. Whether the findings of the Court below are not .
sustainable in view of the fact that neither custom was pleaded nor proved and in any case on the proper construction of question No. 77 and the Kangra Customary Law, Rathis of Hamirpur were entitled to inherit the estate of both adopted father as also the natural father?
4. Whether the suit of the plaintiff was maintainable and the of plaintiff was entitled to decree for injunction when admittedly appellant was separated possession of the property and the suit was not within limitation?
rt
5. Whether the Court below has misconstrued the judgement Ext.P-16 of the District Judge, Hoshiarpur in holding that there was valid adoption of Bhagat Ram by Nihala when the same was not inter party and no reliance could be placed on the said evidence to prove the adoption of the appellant by Nihala?
Substantial questions of law.
8. One Govind the predecessor in interest of the parties at lis died on 5.12.1916. He left behind three sons, Dhian Singh, Bhagat Ram (defendant) and Inder Singh (plaintiff). On his demise mutations qua his estate comprised in Ext.D-4, Ext.D-5, Ext.D-6 stood attested on 8.2.1917 qua all his sons. Dhian Singh remained unmarried throughout his life also he died issueless on 27.3.1933.
On his demise his estate stood on 24.12.1933 mutated as unveiled by Ext.D-1, Ext.D-2 and Ext.D-3 vis-à-vis plaintiff and the defendant. In ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...7...
the year 1962-63 on occurrence of consolidation proceedings in the area whereat the suit land stands located sequelled the consequence .
of the hitherto undevided Khatas of the parties standing separated.
Conspicuously, the plaintiff had concerted to both erode besides disrobe the efficacy of mutation No. 23 Ext.D-4, mutation No. 20 of Ext.D-5 and mutation No. 10 Ext.D-6, mutations whereof stood attested on demise of their predecessor in interest namely one rt Govind on 8.2.1917, in sequel whereof the estate of their predecessor in interest stood mutated respectively in favour of Dhian Singh, Bhagat Ram and Inder Singh. Also a strenuous assay was embarked upon the plaintiff to erode the effect of mutation No. 90 comprised in Ext.D-1, mutation No. 94 comprised in Ext.D-2, and mutation No. 99 comprised in Ext.D-3 mutation whereof stood attested on occurrence of demise of Dhian Singh whereby his estate given his leaving behind no surviving heir stood mutated in favour of the plaintiff and the defendant. Obviously also on occurrence of partition of the suit land during the course of holding of consolidation proceedings in the year 1962-63 in villages Ghulera, Sunani and Mundwin whereat the suit land stands located whereupon obviously the hitherto undivided Khatas of the litigating parties stood ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...8...
dismembered also stands concerted to hold no legal worth.
Moreover an onslaught stands mounted qua the efficacy of revenue .
entries borne in the relevant revenue records qua the suit land conspicuously when their occurrence therein holds consonance with the aforesaid mutations. The anchor of the legal onslaught mounted of by the plaintiff qua the inefficacy of the aforesaid mutations besides qua the inefficacy of the revenue entries borne on the relevant rt records qua the suit land rests upon the defendant Bhagat Ram while his evidently as portrayed by a conclusive rendition of the learned District Judge, Hoshiarpur comprised in Ext.P-16 standing pronounced therein to when aged 13 days old standing adopted by one Nehala concomitantly rendering him unbefitting to hold any vestige of right to claim inheritance qua the estate of his natural or putative father one Govind, estate whereof subsequently opened for succession on occurrence of his demise on 5.12.2016. The finality of the judicial verdict qua the facet aforesaid embodied in Ext.P-16 conspicuously mutes the controversy qua the trite factum of defendant Bhagat Ram standing adopted by one Nehala. The singular factum of the decision recorded in Ext.P-16 holding pronouncements therein of Bhagat Ram standing adopted by Nehala ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...9...
not being a rendition inter se the litigating parties hereat is inconsequential nor would not erode its finality unless the prima .
donna factum probandum pronounced therein stood reversed by a Court higher than the one which pronounced Ext.P-16. However, when no evidence stands adduced herebefore qua the judicial verdict of comprised in Ext.P-16 standing reversed by the High Court concerned renders it to acquire conclusivity also for reiteration benumbs the rt espousal of the defendant of it being not inter parties vis-à-vis the litigating parties hereat its holding no efficacy. However, with the aforesaid prima donna factum standing silenced would not ipso facto countervail the submission of the counsel for the defendant Bhagat Ram qua his merely thereupon not holding any vestige of right to inherit the estate of his natural and putative father one Govind. For silencing the aforesaid facet of the controversy an allusion is enjoined to be made qua the prevalence of customary laws of inheritance in the area whereat the suit land stands located also its holding clout besides governing the inheritance by an adopted son qua the estate of his deceased putative father, customary right whereof stands proclaimed in Question No. 77 and in the apposite answer meted thereto also finds explicit expression in an apposite illustration ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...10...
thereof as held besides encapsulated in the Customary Law of the Kangra District (excluding Kullu) compiled by L.Middleton, Esquire, .
I.C.S. Settlement Officer, Kangra District, which stands extracted hereinafter:-
"Question No. 77 - Is an adopted son entitled to succeed to his natural father in case of the latter having no other lineal issue?
of Answer- Except the Gosains of Kangra and the Gaddis and Kanets of Palampur Tehsil all the tribes say the adopted son is not entitled to succeed to his natural father."
rt Under illustration regarding Tehsil Hamirpur in relation to Mauza Dhatwal, to which the parties to the suit belong, it is illustrated as under:
"Mauza Dhatwal - Lachhman, adopted son of Attar Singh, Rajput, did not succeed to his natural father, who had no other lineal issues."
An incisive reading thereof when unravels qua the relevant apt portions embodied therein holding upsurgings qua an adopted son not standing entitled to stake a right to succeed to the estate of his natural father concomitantly does not bestow any right in the defendant to given his standing adopted by one Nehala to succeed to the estate of his natural father one Govind whereupon the relevant mutations besides the revenue entries qua the suit land embodied in the relevant revenue record when find their occurrence therewithin in consonance therewith garner invalidation. Moreover, the aforesaid submission addressed by the counsel for the defendant Bhagat Ram holding no legal sinew stands mobilized with heightened momentum ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...11...
from the unfoldments occurring in the hereinabove extracted apt illustration thereto, illustration whereof is aptly applicable with .
precision qua the location of the suit land also qua the caste whereto the parties belong hence with its conspicuously bespeaking of Mauja Datwal whereat the suit land stands located qua thereat an adopted of son not holding any right to succeed to the estate of his natural father when the latter leaves behind lineal issues, concomitantly its rt vividly pronouncing the factum of a bar standing constituted under the relevant customary laws holding sway at the time contemporaneous to the opening for succession the estate of one Govind against an adopted son inheriting the estate of his natural father when the latter besides him leaves behind other lineal issues.
In other words, when the natural putative father of an adoptive son besides his adoptive son leaves behind other lineal issues, the relevant customary law governing the right of inheritance of an adopted son qua the estate of his natural father extinguishes also emaciates the right of an adopted son to stake any claim to inherit the estate of his deceased natural father. Given the holding of the aforesaid principle in the relevant illustration, principle whereof pertains with specificity qua the suit land also its with specificity ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...12...
governing the rights of inheritance of an adopted son qua the estate of his natural father given theirs belonging to the Rajput clan .
conspicuously when it articulates qua an adoptive son holding no right to claim inheritance to the estate of his natural father when the latter leaves behind plurality of lineal issues, articulation whereof is of befittingly applicable vis-à-vis the factual scenario hereat tritely when wherewithin on occurrence of demise of one Govind the natural rt father of the parties at contest he left behind three sons imperatively when besides defendant Bhagat Ram he stood succeeded by his other sons or other lineal issues, as a corollary with the aforesaid bar constituted in the relevant illustration holding applicability with aplomb qua the area whereat the suit land is located besides its holding clout qua the manner besides the right of inheritance of an adopted son vis-à-vis the estate of his natural father specifically when they belong to the apt Rajput clan hence also concomitantly renders the claim for inheritance of defendant Bhagat, adoptive son of one Nehala qua the estate of his natural father Govind to suffer effacement. However, the learned counsel for the defendant has made an unstoppable unpunctuated attempt to on anvil of a judgement of this Court reported in Sita Ram and others Vs. Bugga ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...13...
Ram and others 1994(2) Sim.L.C. 455, relevant paragraph 9 whereof stands extracted hereinafter:
.
"9. On the other hand, Shri Gupta referring to judgment in Gainda and Anr. v. Mt. Jai Devi and Anr., 1944 AIR(Lah) 90; Inder represented by Arjan and Anr. v. Makhtar minor s\o Rai Singh and Ors., 1945 AIR(Lah) 17; Mukhtar Singh v. Nathal and Anr., 1946 AIR(Lah) 305 of and Gumam Singh v. Smt. Ass Kaur and Ors., 1977 AIR(P&H) 103, has pointed out that adoption under the Punjab Customary Law is rt different than the adoption under Hindu Law, as under Punjab Customary Law only a personal relationship is established between the appointed heir and appointer, and there is no question of transplantation of adopted son into the family of his adopted father and the adopted son does not lose his right to inherit property of his natural father.
The proposition of law laid down in these judgments cannot be disputed. However, in the present case it has never been the case of the Appellants-Defendants that since the adoption of Mast Ram was under the Punjab Customary Law he was only appointed heir by Jangi of his property and he did not lose his right to inherit the property of his natural father. In the written statement no custom has been pleaded and the clear stand is that, "adoption deed was executed by Jangi in favour of Mastu but the said adoption was cancelled by the then Raja Sahib of Nalagarh State and was not acted upon...and the ties of Mast Ram alias Mastu were not severed from the family of Dooru to the family of Jangi as alleged in this para." In other words, had the ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...14...
adoption deed not cancelled or acted upon, Mast Ram would have been transplanted in the family of adopted father. Since this Court has .
already held that the adoption deed was neither cancelled nor could be cancelled in law, it is held that Mast Ram stood transplanted in the family of adopted father. Therefore, this plea cannot be permitted to be advanced in this second appeal in the absence of any pleading as well of as evidence on record. The adoption had taken place as far back as in the year 1920 A.D. and the parties being Hindu, the only conclusion is that they were governed by Hindu Law in the matter of adoption."
rt to contend of the aforesaid illustration held in the compilation made by L.Middleton, Esquire, I.C.S. Settlement Officer, Kangra District, holding no sway. The vigour of the aforesaid contention tritely stands rested qua when it stands mandated therein of under the Punjab customary law holding application in the area whereat the suit land stands located besides holding sway at the relevant time precisely at the time contemporaneous to the demise of Govind qua adoption thereunder being contradistinct vis-à-vis adoption under the statutory law, contradistinctivity inter se adoption under the Punjab Customary Law vis-à-vis adoption under the statutory law standing constituted by the factum of the Punjab Customary Law within its gamut holding a contemplation qua occurrence of transplantation of an adopted son vis-à-vis the family of his adoptive father whereupon ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...15...
the right of inheritance of an adopted son qua his deceased natural father's estate remains un-obliterated whereupon hence rights stand .
preserved in the adoptive son to inherit the estate of his natural father. He hence contends qua the rights of the defendant to succeed to the estate of his natural father one Govind neither of standing effaced nor obliterated. However, the counsel for the defendant while planking his submission thereupon, has read it in rt segregation of the apt illustration alluded to hereinabove, illustration whereof holds therewithin with precision also with vigour the relevant custom governing the rights of inheritance of an adopted son qua the estate of his natural father. Had he read both in coagulation he would omit to make the aforesaid submission. Also the reliance as placed by him upon a judgement of this Court reported in 1994(2) Sim.L.C. 455 relevant paragraph whereof stands extracted hereinabove is wholly inapplicable hereat given its obviously standing rendered per incuriam vis-à-vis the apt applicable hereat illustration which stands extracted hereinabove wherewithin an apparent mandate ensues qua under the apposite customary rights of inheritance of an adopted son vis-à-vis the estate of his deceased putative father given his deceased putative father standing ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...16...
succeeded by lineal descendants his relevant right of succession to the estate of his deceased natural father hence standing scuttled. As .
an apt sequitur the postulation occurring in paragraph 9 of the rendition of this Court relied upon by the leaned counsel for the defendant does not hold any sway nor constitutes the relevant ratio of decidendi for setting at rest the controversy qua the entitlement of defendant Bhaghat Ram, adoptive son of one Nehala to succeed to rt the estate of his natural father one Govind. Moreso, with the apt illustration holding sway whereat the suit land stands located besides also when it holds legal prominence at the time contemporaneous to the occurrence of demise of Govind whereat the relevant mutations stood attested stridently wanes his right, to, given deceased Govind standing succeeded by the plaintiff besides by the defendant and one Dhian Singh to hence succeed to the estate of his aforesaid natural father. The counsel appearing for the defendant appellant has contended with vigour on the anvil of a judgement of this Court reported in Smt. Shakuntala and others Vs. Surindeer Chand and others, AIR 2006 Himachal Pradesh 108 mandating therewithin a principle anvilled in concurrence with the prescription of a period of three years embodied in Article 113 of the IInd Schedule of ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...17...
Limitation Act, 1963 for institution by the aggrieved, a suit for declaration whereas the plaintiff, since, three years from 1917 when .
the relevant mutations stood attested qua his estate vis-à-vis him besides his other lineal descendants on occurrence of demise of Govind the natural father of the defendant, not, instituting an of apposite suit for declaration, also his within three years since 1933 whereat on demise of Dhian Singh the brother of the parties at rt contest mutations qua his estate, his leaving behind no surviving heir stood attested qua the parties at lis, not, instituting a suit also with the plaintiff not instituting a suit for declaration within three years from 1962-63 whereat during the course of holding of consolidation proceedings in the relevant area their respective hitherto joint Khatas stood segregated, whereat at all the phases/eras aforesaid, a, right to sue accrued or occurred or more conspicuously when the right to sue accrued to the plaintiff on attestation of the relevant mutations renders the institution of a declaratory suit by the plaintiff after a prolonged inordinate delay of more than three years from the relevant phases aforesaid to stand barred by limitation whereupon he contends of the plaintiff standing non-suited. The aforesaid submission made herebefore by the learned counsel for the ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...18...
defendant stands simplistically made, his standing unmindful to the factum of an uncontested display qua the plaintiff standing aged 3 .
months old at the time of attestation of mutations qua the estate of Govind obviously his being a minor thereat deterred him to acquire knowledge qua attestation of mutations comprised in Ext.D-4 and of Ext.D-5 qua the estate of Govind vis-à-vis him besides his brothers one of whom defendant Bhagat Ram stood thereat adopted by one Nehala.
rt Also given his continuing to be a minor he hence stood precluded to thereat or beyond three years thereafter institute a suit for declaration for setting aside the mutations aforesaid. Also on demise of Dhian Singh which occurred in the year 1933 he deposes qua his thereat serving in the army at the frontiers besides he testifies qua his from 1939-47 during the out break of world war-2 remaining in jail in Japan. The aforesaid testifications remain unrebutted rather acquiesced by the defendant wherefrom a sequel stands derived of their holding tenacity. Since no worthwhile best evidence connoted by the plaintiff recording his presence before the Consolidation Authorities concerned at the stage whereat they in the year 1962-63 subjected the suit land to consolidation whereupon their hitherto undivided holdings stood dismembered, stands adduced ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...19...
nor any evidence stands adduced holding manifestations of the plaintiff earlier than 1995 applying for copies of the relevant records .
from the revenue agencies concerned whereas adduction of the aforesaid evidence would dispel the contention of the plaintiff qua his not prior to 1995 acquiring knowledge qua theirs holding therein the of name of defendant Bhagat Ram as a co-owner alongwith him qua the suit land, conspicuously hence theirs standing unadduced would rt facilitate this Court to erect an inference of the plaintiff not prior to 1995 when defendant Bhagat Ram provenly started interfering with his possession qua the suit land acquiring knowledge qua the existence vis-à-vis the defendant of erroneous entries in the relevant revenue records. Also the prima donna factum of the defendant not adducing best evidence displaying the factum of the plaintiff on his acquiring majority, his holding knowledge qua the inefficacy of the relevant mutations besides the inefficacy of the revenue entries recorded in consequence therewith, is a significant pointer of the defendant holding concurrence with the plaintiff qua his not acquiring the apposite knowledge earlier than 1995 whereat the cause of action besides the apposite right to sue accrued to the plaintiff constituted by the defendant invading his rights qua the suit land. The aforestated inference erected by this Court yet entails an obligation upon this ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...20...
Court to scuttle the effect of the principle of law held in the judgement relied upon by the Counsel for the defendant wherein the .
principle of accrual of right to sue occurring on attestation of relevant mutations stands encapsulated. The principle of law aforesaid held therewithin cannot stand omnibusly applied. If it stands applied of blindfoldedly it would perpetuate gross injustice. Also a rigid application of the principle held therewithin would foist rights in the rt defendant to stake a right qua the estate of his deceased natural father even when he at the inception or the stage of the recording of the relevant mutations he stood barred for reasons aforesaid to alongwith his brothers succeed to his estate. Concomitantly, also a mantle of legal validation would stand foisted thereupon even when they stood barred to stand attested qua the defendant. Needless to hold of the reflections in all the apt revenue records holding no validity theirs spurring from mutations, in contemporaneity qua recording whereof no vestige of right inhered in the defendant.
In sequel when at the inception of the attestation of the relevant mutations they stood rendered nonest besides void, any untenable warranting qua theirs standing impeached within the period of limitation constituted in the relevant article of the Limitation Act ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...21...
would sequel theirs thereupon acquiring the paramount virtue of validation in law, imputation thereto of validation would strike a .
discordance also dichotomy vis-à-vis their initial occurrence starkly being non-est besides void. Naturally hence void besides tainted mutations also revenue entries made in consonance therewith qua of the suit land when hence bereft of any legal sinew to invest qua the suit land rights in the defendant warrants theirs being set-aside and rt quashed, for as a corollary on anvil thereof belittling the justifications of the defendant for legitimizing his holding any tract of the suit land. For a void entry being undone significantly for disrobing the defendant to perpetuate his untenably holding any tract of the suit land it can stand impeached from the date of acquisition of knowledge by the plaintiff qua its existence in the relevant records, also when the relevant acquisition of knowledge by the plaintiff ensues from his rights upon the suit land standing threatened besides invaded, concomitantly thereupon alone the 'right to sue' accrues to the plaintiff whereafter he within three years thereafter stands entitled to institute a suit for declaration. Any leanings by this Court to take a view contrary to the one aforesaid would efface the working of justice vis-à-vis the plaintiff contrarily it would permit the ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...22...
defendant to perpetuate his unlawful claim qua any tract of the suit land, for undoing the occurrence of any mishap to justice also to .
mitigate any unwarranted prolonged efficacy standing enjoyed by void entries it is deemed fit to conclude of 'right to sue' within the ambit of the relevant article of Limitation Act, accruing to the plaintiff of not from occurrence of adverse entries qua his rights qua the suit land rather conspicuously the 'right to sue' to the plaintiff emerging rt besides also its sprouting on the defendant making a loud, open unequivocal threat to infringe his indefeasible right qua the suit land.
With this Court forming the aforesaid conclusion qua a 'right to sue' accruing to the plaintiff on his rights qua the suit land standing openly proclaimed to be infringed and invaded by the defendant, invasion whereof when stands unflinchingly proven to occur in 1995 renders the year 1995 to constitute the relevant year wherefrom the period of three years warrants its computation for hence rendering his suit to be maintainable whereas his instituting his suit within three years thereafter renders his suit to be within limitation. The effect of the aforesaid conclusion also holds coagulation with the non adduction of the relevant best evidence aforesaid in portrayal of the plaintiff earlier thereto holding knowledge qua the occurrence of ::: Downloaded on - 15/04/2017 21:06:03 :::HCHP ...23...
erroneous reflections in the revenue records. In trite the parlance borne by the phrase 'right to sue' occurring in the relevant article of .
the Limitation Act is of it standing read for undoing the efficacy of void entries also its precluding a party to on stricto senso anvil thereof perpetuate his unlawful rights qua the suit land. Moreso, of when the undoing of their inefficacy would rid injustice also when knowledge qua their existence in the relevant records emanates only rt on rights of the plaintiff standing visibly infringed by an overt act of the defendant contrarily when hence the parlance borne by the coinage aforesaid does not bear any signification of its mandating the plaintiff to pedantically, without his holding knowledge of the void entries yet preemptorily institute a suit within three years of occurrence of void entries.
9. This Court while building the aforesaid legal postulation finds succor from the decisions of the Punjab and Haryana High Court reported in Niamat Singh vs. Darbari Singh and others 1956 AIR (43) 1956 Punjab 231, Mst. Rukhmabai vs. Lala Laxminarayan and others AIR (47) 1960 SC 335 and also from Daya Singh and other Vs. Gurdev Singh (dead) by LRs and others 2010 2 SCC 194.
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10. The summum bonum of the above discussion is of the declaratory suit of the plaintiff standing not barred by limitation .
rather it being within limitation. In aftermath, the judgement and decree of the learned First Appellate Court as stands assailed hereat does not suffer from any infirmity, hence it is maintained and of affirmed. The substantial questions of law are answered accordingly.
In sequel the appeal is dismissed. Decree sheet be prepared rt accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.
29th August, 2016. (Sureshwar Thakur)
™ Judge.
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