Punjab-Haryana High Court
Balwant Singh vs Khushal Singh And Anr. on 11 August, 2003
Equivalent citations: AIR2004P&H63, (2003)135PLR439, 2004 (1) HRR 335, AIR 2004 PUNJAB AND HARYANA 63, (2004) 14 ALLINDCAS 427 (P&H), (2003) 3 PUN LR 589, (2003) 2 HINDULR 614, (2003) 3 RECCIVR 496, 2004 HRR 1 335, (2004) 1 MARRILJ 92, (2003) 3 PUN LR 439, (2004) 1 ICC 560, (2004) 1 CURLJ(CCR) 70, (2004) 1 LANDLR 523, (2004) 1 RECCIVR 806
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. The respondent-plaintiff filed a suit for declaration to the effect that he was owner in possession of the suit land to the extent of 1/3rd share and mutation in the Jamabandi for the year 1978-79 as well as entries in Column No. 4 of subsequent Jamabandis in favour of defendants were void.
2. Defendants are sons of the plaintiff. It was stated that plaintiff and defendants were owners in joint possession to the extent of 1/3rd share each pursuant to sale deed dated 19.11.1980 whereby plaintiff and defendants jointly purchased the suit property. Case of the plaintiff, further was that the defendants got mutation entered in record showing themselves to be owners in equal shares which mutation was erroneous and did not bind the plaintiff who continued to be owner in possession of the suit land to the extent of 1/3rd share.
3. The suit was contested by defendant No. 2 only while defendant No. 1 filed written statement supporting the plaintiff. Defendant No. 2 claimed that suit property was purchased by him exclusively and not jointly as claimed by the plaintiff and, therefore, mutation excluding the name of the plaintiff was valid.
4. The trial Court decreed the suit in view of sale deed dated 19.11.1980, Ex.P.2, evidence of PW1 plaintiff, Khushal Singh, PW2 Bagga Singh, Sarpanch and also admission of DW1 Mahanta Singh, defendant No. 1. It was also held that entries excluding plaintiff were without any basis.
5. On appeal, the findings of the trial Court were affirmed. Aggrieved thereby, this second appeal has been filed.
6. Learned counsel for the appellant submitted that the plaintiff had challenged mutation entries of the year 1983 onwards and suit filed in the year 1996 was time-barred, limitation being three years under Article 59 of the Schedule to the Limitation Act. He further submitted that suit for mere declaration without seeking relief of possession was not maintainable in view of bar contained in proviso to Section 34 of the Specific Relief Act. In support of his later submission, learned counsel for the appellant relied on Ram Saran and Anr. v. Smt. Ganga Devi, A.I.R. 1972 S.C. 2685, Vinay Krishna v. Keshav Chandra and Anr., A.I.R. 1993 S.C. 957 and Kidara v. Mange, (2001-2)128 P.L.R. 659 (P&H).
7. I do not find any merit in the submissions made on behalf of the appellant.
8. Present suit is governed by Article 58 of the Schedule to the Limitation Act and limitation starts running from the date when right to sue first accrues. Mere entry in record of rights in the name of defendant is not enough to furnish cause of action and time will begin to run from the date there is some threat from the defendant for denial of his title.
9. In Ibrahim v. Smt. Sharifan, A.I.R. 1980 P&H 25, a Division Bench of this Court observed; "It may be observed at the outset that the word 'first' occurring in Article 58 of the Act is of no signifance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not." It was further held that where no cloud is cast on the title of plaintiff, from mere entry of mutation in the name of the defendant, in absence of any other act of the defendant, cause of action does not accrue to the plaintiff for purposes of Article 58 of the Schedule to the Limitation Act.
10. In the present case, averment in the plaint is that plaintiff and defendants continued in joint possession though a mutation was got sanctioned by defendant No. 2 which came to the notice of the plaintiff on 20.6.1996 which furnished a cause of action to the plaintiff.
11. Coming to the contention based on proviso to Section 34 of the Specific Relief Act, I again do not find any merit in the said contention. The lower appellate court rightly held that co-sharers are taken to be in joint possession of the property co-owned by them and it was not necessary for the plaintiff to seek relief of possession when plaintiff claimed that he was in joint possession. It is well-settled that possession of one co-sharer is possession of the other unless ouster is established. In the present case, ouster of the plaintiff has not been established and, thus, he continued to be in joint possession by virtue of being a co-sharer, even if he was not in physical possession. Bar under proviso to Section 34 of the Specific Relief Act is not applicable.
12. The decisions relied on by the learned counsel for the appellant are distinguishable. In Ram Saran's case (supra), suit seeking mere declaration of title was held to be not maintainable when possession was with the defendant. In that case, plaintiff was not a co-sharer and, thus, it was held that plaintiff was not in possession. In the present case, plaintiff is co-sharer and finding of the courts below is that he continued to be in joint possession as co-sharer.
13. In Vinay Krishna's case (supra), defendants who were tenants in possession and no relief of possession was sought, suit for mere relief of declaration was held to be barred. This judgment is again distinguishable for the same reasons.
14. In Kidara's case (supra), suit of the plaintiff for declaration of title was dismissed by the lower appellate court which was affirmed in appeal by this Court. It was held that the appellant-plaintiff had no title to the suit property. It was also observed that appellant did not seek relief of possession. This judgment is also distinguishable. In the present case, the appellant has been held to be co-sharer in joint possession. In view of this claim which has been established, no other relief was required to be claimed than simple declaration.
15. For the above reasons, I do not find any merit in this appeal. No substantial question of law is involved. The appeal is dismissed.