Punjab-Haryana High Court
Roop Ram (Deceased) Through His Lrs. vs Mai Sukh And Ors. on 16 September, 1997
Equivalent citations: (1998)118PLR610
JUDGMENT V.K. Jhanji, J.
1. This is defendant's second appeal directed against judgment and decree of the first appellate Court whereby judgment and decree of the trial Court has been reversed and consequently, suit of the plaintiff for declaration and for joint possession has been decreed.
2. In brief, the facts are that one Biru had two sons, namely, Jiwan and Prema. Prema was owner of 170 Bighas 16 Biswas of land in Khewat No. 359. Prema gifted his 1/5th share of land to his nephew, Ganesha son of Jiwan. In this regard, mutation No. 909 was sanctioned on 11.6.1921. Plaintiff and defendants 2 to 10 are successors-in-interest of Prema whereas first defendant is successor-in-interest of Ganesha. It is further the case of the plaintiff that due to mistake by the revenue Officer in the jamabandi for the year 1934-35, Prema and Ganesha were shown as owners to the extent of half:half share and this continued till 1960-61. In the jamabandi for the year 1946-47, entries were corrected but it again continued as made in 1934-35 and remained as such till 1960-61. Somewhere in the year 1963, parties to the suit exchanged the entire khewat for khewat No. 85 measuring 85 Bighas 17 Biswas. Before the names of the co-owners could be reflected in the jamabandi on the basis of exchange, plaintiff filed an application to the Naib Tehsildar for making correction in the jamabandis so as to show the defendant to be owner of 1/5th share and plaintiff to be owner of 4/5th share. Naib Tehsildar vide order dated 29.1.1966 ordered correction and as a consequence thereof, in the jamabandis for the years 1962-63 and 1966-67 the plaintiff was shown as owners of 4/5th share and defendant as owner of 1/5th share. Defendant filed an appeal against the order of Naib tehsildar and the Collector, Hisar, accepted the appeal and restored the previous entries. It was thereafter that the present suit was filed by the plaintiff. In his plaint, plaintiff termed the order of the Collector as illegal and sought declaration that he is owner in possession of 4/5th share and defendant is entitled to keep in his possession 1/5th share. Decree for joint possession was also sought by saying that out of the total land, defendant is entitled to keep in his possession land measuring 78 Kanals 10 Marlas being 1/5th share but he is in possession of 117 Kanals 6 Marlas. In this way, plaintiff alleged that he and defendants 2 to 10 are entitled to decree for joint possession. On notice of the suit first defendant filed written statement, contesting the case advanced by the plaintiff in his plaint. First defendant apart from taking the plea that the plaintiff was estopped from filing suit by his own act and conduct, took up the plea that he has become owner of the suit land by way of adverse possession. The order of the Collector was alleged to be legal, just and binding. Defendent further alleged that Prema had given half share in the property to Ganesha, but due to certain error committed by, the Revenue Authorities while entering mutation No. 909, 1/5th share was shown to have been gifted to Ganesha. Defendant also alleged that the suit is not within limitation. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether the plaintiff and defendant No. 2 to 11 are owners having 4/5th share in the suit land? OPP.
2. Whether the suit is within limitation? OPP.
3. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD.
4. Whether the defendant has become owner of the suit land by adverse possession? OPD.
5. Whether the suit is not maintainable in the present form? OPD.
6. Whether the suit is bad for non-joinder of necessary party? OPD.
7. Whether the order of Collector dated 10.9.63 is void, without jurisdiction and not binding upon the plaintiff? OPP.
8. Relief.
Trial Court though held the order of the Collector as illegal and without jurisdiction, but at the same time the suit was dismissed being filed after the prescribed period of limitation. However, in appeal, the first appellate Court held that the order of the Naib Tehsildar and the Collector are inconsequential inasmuch as the plaintiff and proforma respondents have 4/5th share and the first defendant has 1/5th share. Suit was held to be within limitation and therefore, the first appellate Court allowed the appeal, set aside the findings of the trial Court and consequently, decreed the suit of the plaintiff.
3. In this second appeal, it has been contended by counsel for the appellant that the suit of the counsel for the appellant that the suit of the plaintiff was clearly barred by time inasmuch as order of the Collector was passed in 1963 and the suit was filed beyond the period of three years. He thus, contended that the learned Additional District Judge acted erroneously in decreeing the suit of the plaintiff. Against this, Mr. M.L. Sarin, Sr. Advocate for the plaintiff, contended that the land in dispute is joint and the plaintiff being in possession is entitled to seek declaration as and when his possession is threatened. He thus, contended that the suit filed was within the prescribed period of limitation.
4. After hearing the counsel and going through the record, I am of the view that there is no merit in the appeal. It is now no more in dispute that Prema was owner of the property in dispute. Vide mutation No. 909, Prema gifted 1/5th share out of Khewat No. 359 in favour of Ganesha son of Jiwan and kept 4/5th share with him. 'Remarks' column in respect of mutation No. 909 shows that 1/5th share was mutatated in the same of Ganesha son of Jiwan on the basis of statement made by Prema and Ganesha and the statements made by them were verified by Jai Sukh and Lakhu Biswedar and Khaira, Nambardar. Mutation was sanctioned on 11.6.1921 and in the jamabandis for the year 1922-23, 1926-27 and 1930-31, Ganesha was continued to be shown as owner to the extent of 1/5th share and Prema to the extent of 4/5th share. It was in the jamabandi for the year 1934-35 that the mistake occurred and Ganesha and Prema were shown to be owners in equal shares. It is also the admitted case of the parties that the possession of the plaintiff and the defendants is joint and the suit land has not been partitioned till date. In the suit, plaintiff has termed the order of the Collector illegal and has sought declaration to the effect that he and proforma respondents are owners in possession of 1/5th share and the first defendant is entitled to keep in his possession 1/5th share. As regards the orders of the Naib Tehsildar and the Collector, no exception can be made to the proposition that the Naib Tehsildar or Collector had no jurisdiction to order correction in the record of rights by 'Farad Badar' as only the Civil Court has the jurisdiction to order correction. It is provided in Section 45 of the Punjab Land Revenue Act that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights, or in an annual record, he may institute a suit for declaration of his right under Chapter VI of the Specific relief Act, 1963. Chapter VI of the Specific Relief Act contains two sections; Sections 34 and 35, which provide as under :-
"34. Discretion of Court as to declaration of status or right Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion made therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief; Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation - A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom if, in existence, he would be a trustee.
35. Effect of declaration -
A declaration made under this Chapter is binding only on the parties to the suit, binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees on the persons for whom, if in existence at the date of the declaration, such parties would be trustees."
To maintain a suit Under Section 34, the following conditions must be established:-
(i) that the plaintiff is a person entitled to any legal character or to any right as to any property,
(ii) that the defendant is a person denying or interested to deny the plaintiffs title to such legal character or right.
Plaintiff in this case is seeking declaration of his right in the property and defendant is a person denying plaintiffs title. The present suit is one Under Section 34 of the Specific Relief Act. The contention that the suit filed was not within the prescribed period of limitation is without any merit. Article 58 of the limitation Act governs the present case. It provides limitation period of three years to obtain any declaration from the date when the right to sue first accrues. It is not in dispute that plaintiff continued to remain in possession even after Ganesha was shown as owner to the extent of half share in the record of rights. In the suit, it has been alleged by the plaintiff that cause of action accrued to him a week before filing of the suit when the defendants denied the right of the plaintiff to the property. Except the entry in the name of Ganesha showing him to be owner to the extent of half share in the jamabandi for the year 1960-61, there is no proof on record to show that by any act or assertion of the defendants the right of the plaintiff was ever threatened any time before the cause of action accrued to the plaintiff. In Mst. Rukhma Bai v. Lala Laxminarayan and Ors., A.I.R. 1960 S.C. 335, it has been held by their Lordships of the Supreme Court that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. Reference may also be made to a Division bench judgment of this Court in Ibrahim alias Dharamvir v. Smt. Sharifan alias Shanti, 1979 P.L.J. 469, wherein it has been held that in a case where the plaintiff continued to be in possession of property, mere entry of mutation in the name of defendant would not furnish any cause of action to the plaintiff till such time defendant actually threatened to take forcible possession of the land from the plaintiff. This being the position in law, suit of the plaintiff cannot be said to be barred by limitation.
5. Consequently, the appeal being without any merit shall stand dismissed. No costs.