Gurmail Singh and Others vs Jit Singh and Others

Sat Pal, J.—This appeal has been filed by the appellants plaintiffs against the judgment dated 19.5.1978 passed by the learned trial Court and the judgment dated 25.4.1979 passed by the learned Additional District Judge, Rup Nagar.

Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration to the effect that sale in respect of the land measuring 8 Kanals 2 Marlas out of the land measuring 16 kanals and 3 Marlas comprised in Khewat/Khatauni No. 8/11, Khasra No. 11/21/2(49)12/25/2(47), 13/5/1(77) situated in the area of village Ramgarh alias Manda effected on 29.11.1967 and confirmed on 9.2.1968 and also on 26.7.1972 by the Assistant Collector Ist Grade, Ropar in favour of defendant No. 1 (Jit Singh) was illegal, ultra vires void and, therefore, was not binding upon the plaintiffs and was consequently liable to be set aside. In the plaint inter alia it was alleged that the possession of the land in dispute was with the plaintiffs. In para 8 of the plaint, it was averred that cause of action in the suit arose to the plaintiffs on 29.11.1967, the date of the sale and 9.2.1968 and 26.7.1972 the date of confirmation of the sale and on 20.6.1973 when the defendants refused to admit the claim of the plaintiffs. In the written statement filed on behalf of the defendants, the averments made in the plaint were controverted. The plaintiffs also filed replication in reply to the written statement wherein the averments made in the plaint were reaffirmed.

The learned trial Court framed the following issues :

Whether the sale effected on 29.11.1967 and confirmed on 9.2.1968 and 26.7.1972 by Asstt. Collector Ist Grade, Ropar in respect of land measuring 16 Kanals 3 Marias situated in the area of village Ramgarh fully described in the headings of the plaint is illegal, null and void ineffective as against the rights of the plaintiff as alleged in plaint? OPD.

1-A Whether the order of A.C. Ist Grade dated 20.6.1973 is illegal and ultra vires and has no effect on the rights of the plaintiffs? OPP.

Whether the suit is within time? OPP.

Whether the plaintiffs are in possession of the suit land? OPP.

Whether the suit is correctly valued for the purposes of court fee and jurisdiction?

Relief.

The learned trial Court gave findings in favour of the defendants and against the plaintiffs on all the issues and consequently dismissed the suit of the plaintiffs. The learned trial Court held that the suit filed by the plaintiffs was barred by limitation. It was observed by the learned trial Court that as per averments made in the plaint cause of action accrued in favour of the plaintiffs on 29.11.1967 when the sale took place and thus right to sue accrued to the plaintiffs on 29.11.1967 and the suit having been filed on 29.11.1973 i.e. after six years was barred by limitation in view of the article 58 of the Limitation Act. On the point of possession, the learned trial Court held that the plaintiffs have failed to produce any evidence in support of the averments that they were in possession of the suit land. As regards, issue No. 1 and 1-A, the learned trial Court held that the sale effected on 29.11.1967 and confirmed on 9.2.1968 and 26.7.1972 and order of Assistant Collector Ist Grade, Ropar dated 20.6.1973 were legal and valid.

Aggrieved by the judgment passed by the learned trial Court, the plaintiff filed an appeal bearing Civil Appeal No. 78/8.6.1978 which was dismissed by the learned Additional District Judge, Rup Nagar. The learned Additional District Judge confirmed the findings of the trial Court on all the issues. The learned first appellate court also held that the suit filed by the plaintiffs was barred by limitation in as much as the cause of action accrued to the plaintiffs on 9.2.1968 when the sale in favour of defendant Jit Singh was confirmed vide order Ex. P-3 and at the most the cause of action could be taken as having been arisen on 27.11.1968 when the sale certificate copy of which is Ex. P-10 was issued in favour of the defendants. The learned first appellate Court, therefore, came to the conclusion that since the suit was filed on 29.10.1973 i.e. beyond the period of three years, the same was barred by limitation in view of article 58 of the Limitation Act. On the point of possession learned first Appellate Court also observed that the plaintiffs had not been able to prove that they were in possession of the suit land as they had not produced khasra girdwaries, jamabandies for the period subsequent to the sale nor any period prior to the sale. It was further observed that admittedly the land in dispute was under mortgage and in the ordinary course the plaintiffs who were the mortgagor could not be in possession as the land then must have been in possession of the mortgagee. On issue No. 1 and 1-A, while upholding the findings of the learned trial Court, the learned first Appellate Court observed that the mere fact that some irregularity had been committed and the provisions under Order 21, Rule 68 of CPC were not complied fully, was not sufficient to render the sale invalid particularly when it had not been shown that any prejudice had been caused to Mal Singh, Judgment Debtor. It was, therefore, held that neither the sale was invalid nor illegal nor the order dated 26.6.1973 ordering partition was illegal. Aggrieved by the aforesaid judgment passed by the learned Additional District Judge, Rup Nagar present appeal has been filed.

Mr. Arora, learned senior counsel appearing on behalf of the appellants submitted that the learned courts below were not correct in holding that the suit filed by the plaintiffs was barred by limitation. He submitted that suit of the plaintiffs was not governed by Article 58 of the Limitation Act but on the contrary it was governed by Article 113 of the Limitation Act as the plaintiffs were in possession of the suit land. The learned counsel further submitted that the sale certificate was issued in respect of khasra No. 11/21/2, 12/25/2, 13/5/1 whereas plaintiffs were in possession of land bearing khasra No. 84, 85 and 86.

Mr. Navkiran Singh, learned counsel appearing on behalf of the respondents, however, submitted that the sale in favour of Jit Singh was confirmed on 9.2.1968 and the suit could be filed within a period of three years from the said dated i.e. on or before 8.2.1971 but the suit infact has been filed on 29.10.1973 and as such the suit was barred by limitation. He also submitted that the plaintiffs had not produced any evidence in support of their contention that they were in possession of the suit land and as such the suit of the plaintiffs was governed by Article 58 of the Limitation Act and not Article 113 of the Limitation Act. Lastly he submitted that both the courts below had given concurrent findings in favour of the defendants and against the plaintiffs that the sale effected on 29.11.1967 and confirmed on 9.2.1968 and 26.7.1972 and order dated 26.6.1973 ordering partition were legal and valid and the appellants have not been able to point out any fact from the records that these findings were not based on legal evidence. He, therefore, contended that the appeal filed by the appellants was without any merit and should be dismissed.

I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have perused the records.

From the records, it is clear that the sale in favour of Jit Singh, defendant was confirmed vide order dated 9.2.1968, copy of which is Ex. P-3 and even the sale certificate copy of which is Ex. P-10 was issued on 27.11.1968. After going through the judgments passed by the learned trial Court and the learned first Appellate Court, I also find that the plaintiffs did not produce any evidence like khasra girdwaries, jamabandi in support of their contention that they were in possession of the suit land. In view of these facts, the case of the plaintiffs is governed by Article 58 of the Limitation Act and the suit of the plaintiffs could have been filed within a period three years from the date of the confirmation of sale i.e. on or before 8.2.1971. Since, the suit has been filed on 29.10.1973, the suit filed by the plaintiffs is clearly barred by limitation. As ragards contention of the learned counsel of the appellants that sale deed does not pertain to the suit land but pertains to some other land; I do not find any merit in this contention. A bare reading of the plaint shows that the plain tiffs had filed suit for declaration with regard to the land comprising in Khasra No. 11/21/2, 12/25/2 and 13/5/1 and Ex. P-10 which is the copy of the certificate of sales also indicates that the sale certificate was issued with regard to the same land comprising in khasra No. 11/21/2, 12/25/2 and 13/5/1. Even otherwise the learned counsel for the appellants could not make any case for setting aside the concurrent findings given by the courts below on any of the issues.

In view of the above discussion, I do not any merit in this appeal and the same is accordingly dismissed. Parties are, however, left to bear their own costs.