Karam Kaur vs Battan Singh and another

J. V. Gupta, J.

In this case, arguments were heard and the judgment was reserved but on February 2, 1982 Civil Miscellaneous No. 586C/1982 under Order 41, Rule 27 C.P.C. was filed in this Court. Notice of this Civil Miscellaneous application was given to the counsel opposite to which he filed his reply today in Court. According to the averments in the application filed on behalf of the respondents, it was stated that during the pendency of the appeal, the property in dispute had been sold to the respondents by the appellants by a registered deed, photostat copy of which was attached as Annexure `A''. In the reply filed by the appellant, it has been categorically stated that the description of property given in the said sale deed does not tally with the description of the property in dispute and the property in dispute was never sold to the respondents, as claimed by them. All other allegations were also denied.

After going through the application and the reply filed thereto and hearing the learned counsel for the parties, I find that there is no merit in this application which is consequently dismissed. Accordingly the appeal disposed of on merits.

The plaintiffappellant filed a suit for possession of the site in dispute on the allegations that vide gift deed dated 15.3.1958, Ishar Singh alias Chuhar Singh son of Dalip Singh of village Sujjon, effected the transfer of certain agricultural land and the site in the Abadi of village Sujjon in favour of Smt. Karam Kaur, the plaintiff, his sister. Said Karam Kaur thereafter instituted the present suit on 19.11.1965 for possession of that site against Rattan Singh and Gulwant Singh sons of Dewan Singh on the allegations inter alia that Chuhar Singh and his mother Jowali were the owners of the site in dispute and the said Chuhar Singh and Jowali transferred that estate to the plaintiff vide the said registered gift deed dated 15.3.1958. That about a year prior to the institution of the suit the defendants had started stacking bricks on that site to raise a building thereupon, whereupon the plaintiffs were constrained to bring a suit for mandatory injunction to ask the defendants to remove their bricks from the site in question; that in disobedience of the temporary injunction issued by the Court, the defendants constructed two Kothas on the site, thus, the defendants have taken forcible possession of the site shown in red colour and thus having unauthorisedly built thereupon, the plaintiff withdrew her previous suit, because of certain technical defects and has now brought the present suit for possession of the site. It has also been pleaded in para No. 2 of the plaint that on 7.10.1961 the defendants had filed a suit for possession of this very site against Karam Kaur, the plaintiff, and Chuhar Singh and Jowali the donors, that suit was dismissed by the trial Court vide its judgment dated 18.4.1962, Exhibit D. 2. It was thus contended that the said judgment operates as res judicata and debarred the defendants from raising the question of ownership again. The suit was resisted by defendant No. 1 on variety of grounds. It was contended firstly that the suit for possession of the site merely did not lie because the defendants have since built a house thereon and no relief has been sought in respect of the house. The execution of any gift deed by Chuhar Singh and Jowali in plaintiff''s favour was denied, it was contended that on the other hand the defendants have been the owners in possession since long having acquired it by preemption. On the pleadings of the parties, the trial Court framed the following Issues :

(1) Whether the suit is maintainable in the present form ?

(2) Whether Ishar Singh alias Chuhar Singh is a necessary party ? If so to what effect ?

(3) Whether this suit is liable to be stayed under Section 10 Code of Civil Procedure ?

(4) Whether Ishar Singh made a gift of the property in dispute in favour of the plaintiff ?

(5) Whether the defendants acquired the property by means of preemption ?

(6) Whether the suit No. 429 of 1961 decided on 18.4.1962 is res judicata between the parties ?

(7) Relief.

The trial Court dismissed the plaintiff''s suit, as under issue No. 5 it was held that the defendants had been shown to be the owners of the land in question, because of the preemption decree in their favour. As regards issue No. 6 it was concluded that the judgment in question did not operate as res judicata and did not debar the defendants from raising the question of ownership of the site in question. In appeal the learned Senior Subordinate Judge, with enhanced appellate powers, has affirmed the findings of the trial Court and thus maintained the decree dismissing the plaintiff''s suit. Dissatisfied with the same the plaintiff has come up in second appeal in this Court.

Learned counsel for the appellant vehemently contended that in view of the earlier judgment, Exhibit D2, dated 18.4.1962, whereby the suit filed on behalf of the defendants was dismissed being barred by time, their rights if any in the suit property are extinguished in view of the provisions of the Limitation Act. In support of his contention he has referred to Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbandhak Committee, Amritsar, A.I.R. 1938Lahore369, Lala Hem Chand v. Lala Pearey Lal and others, A.I.R. 1942Privy Council 64, Ram Murti and others v. Puran Singh son of Attra Singh and another, A.I.R. 1963Punjab 393, Mt. Mamudunnissa and another v. Sayed Zahid Raza and another, A.I.R. 1925Oudh 20. Section 27 of the Limitation Act, reads as under :

"27. Extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

Admittedly in the judgment earlier between the parties, Exhibit D2, there were two issues framed, one was whether the plaintiffs (now defendants) are owners of the property in dispute, and the second was whether the suit is within time. Issue No. 1 was found in favour of the plaintiffs, whereas issue No. 2 was held against them. It was observed therein that the plaintiffs have failed to show their possession within 12 years of the institutions of the suit over the property in dispute. The present suit was filed in November, 1965, because after the dismissal of the earlier suit the defendants got illegal and forcible possession of the site in dispute. Thus in view of the provisions of Section 27 of the Limitation Act, the rights of the defendants in the suit property shall stand extinguished. In Mt. Mamudunnissa''s case (supra) it was held that if a party who has been 12 years out of possession and whose suit is therefore, barred, should again come into possession, he is not remitted to his old title, as there is no remitter to a right for which the party had no remedy at all. This was followed by this Court in Ram Murti and another''s case (supra). In this view of the matter both the Courts below have erred in holding that Chuhar Singh donor was not the owner of the property at the time of making of gift in favour of the plaintiff. The gift was made in the year 1958 whereas the suit filed on behalf of the defendants dismissed on 18.4.1962, Exhibit D2, being barred by time. Thus the donor had become the owner of the suit property and had made a valid gift in favour of the plaintiff. The defendants go into illegal possession after the year 1962, when their suit was dismissed and raised construction thereon. Once it is held that the plaintiff is the owner of the suit property by virtue of the gift in her favour by Chuhar Singh, her suit is liable to be decreed, because the defendants had already failed in their suit.

As a result of the above discussion this appeal succeeds and the judgments and decrees of the Courts below are set aside and the plaintiff''s suit for possession is decreed with costs throughout. However, the defendants will be entitled to remove the construction made thereon at the time of the execution of the decree, if they so desire.