Ganpat And Another v. Lachhman And Others

1. This regular second appeal filed by the plaintiff is directed against the judgment and decree dated 20.12.1984 passed by the lower appellate court affirming that of the trial court dated 16.5.1980 vide which the suit of the plaintiffs for declaration has been dismissed only on the ground of limitation.

2. Adumbrated, the facts necessary for the disposal of this appeal are that the plaintiffs filed a suit for declaration to the effect that they along with defendant No. 5 - Sultan are owners in possession of 4/5th share of the suit property measuring 7 kanals 8 marlas situated in the revenue estate of village Kanwi District Narnaul as per jamabandi for the year 1970-71 and defendants No. 1 to 3 have no concern with me same. It was pleaded that mutation No. 728 dated 15.12.1985 sanctioned in respect of the inheritance of Ram Dhan son of Hukam in the name of Natha son of Ramdhan, son of Hukam was illegal, fraudulent and was liable to be set aside. It was further pleaded that initially the suit property measuring 1 bigha 10 biswas bearing khewat No. 59, Khatauni No. 296, Khasra No. 731 situated in the revenue estate of Village Kanwi was in possession of Mam Raj son of Hukam as a tenant and on the death of Mam Raj, mutation No. 105 with regard to their inheritance was sanctioned in favour of Smt. Jamna widow of Man Raj on dated 22 Jyesth 1967 BK. After the death of Smt. Jamna Devi, the mutation of inheritance was sanctioned in favour of Mongia, Phusia, Richhpalia sons of Khem Chand, Pirana son of Chokha, Rambax son of Nima 1/5th share; Mullia son of Tiloka 1/5th share; Richhpalia son of Nonda alias Notu 1/5th shares; Ram Dhan son of Hukma 1/5th share and Ishwar son of Hukma 1/5th share. It was further pleaded that Pirana, Rambax, Mongia, Phusia and Richhalia had died issueless and their shares in the suit property devolved upon their heirs. Ram Dhan also died and Hansa, Phusa, Cheta and Jhutha inherited his property. It was further pleaded that the plaintiffs and defendant No. 4-Hansa and Phula, Cheta, Jhutha and defendant No. 5-Sultan came to be recorded in possession as tenants in respect of the suit land. It was also pleaded that the plaintiffs obtained the copies of the revenue record and came to know about the mutation in dispute. They filed a revision before the Collector, Narnaul on 29.11.1976 and the same was dismissed holding that the matter involved intricate questions of law and fact and the plaintiffs were directed to approach the Civil Court.

3. The averments made in the plaint were refuted by the defendants by raising various preliminary objections in their written statements. It was pleaded that mutation No. 728 sanctioned on 15.12.1995 BK was rightly sanctioned in favour of Natha son of Ram Dhan and the defendants are descendants of said Natha. It was further pleaded that the defendants were in possession of the suit property and claimed to have become owners by way of adverse possession. It was further pleaded that during the consolidation proceedings, the plaintiffs have admitted the defendants to be the descendants of the owner of the suit property. The other averments made in the plaint were also denied.

4. The trial court framed the following issues:

1. Whether plaintiffs are owners and in possession of suit land? OPP

2. Whether the suit is within time? OPP

3. Whether defendant No. 1 to 3 have become owners by adverse possession? OPD

4. Whether the plaintiffs are estopped from filing the present suit, as alleged? OPD

5. Relief.

5. On appreciation of the oral as well as the documentary evidence led by the parties, it was held that though the plaintiffs are owners of the suit property yet plaintiff No. 1 was not in possession of any portion while plaintiff No. 2 was in possession of 1/10th share of the suit property. Issues No. 3 and 4 were decided against the defendants. The trial court, however, holding that the suit was time barred dismissed the suit of the plaintiff vide judgment and decree dated 16.5.1980. Being aggrieved, the plaintiffs took the matter in appeal and challenged the findings of the trial court on issue No. 2. The lower appellate Court vide judgment and decree dated 20.12.1984 affirmed the findings recorded by the trial court and holding that the suit was time barred, dismissed the appeal as well.

6. Learned Counsel for the appellants relied upon a Division Bench judgment of this Court in Mohinder Singh died and represented by his LRs v. Kashmira Singh 1985 P.L.J. 82 to canvass that for a suit for declaration and possession which is based on inheritance, there is no period of limitation prescribed under the provisions of the limitation Act, 1963 and the inheritance does not remain in abeyance and opens immediately after the death of the last male-holder.

7. Learned Counsel for the respondents, on the other hand, has supported the judgments and decrees passed by the courts below.

8. I have heard the learned Counsel for the parties and have gone through the record with their assistance. After hearing learned Counsel for the parties, the following substantial question of law arises for consideration of this Court:

Whether there is any period of limitation prescribed under the Limitation Act for a suit for possession based on inheritance and could in view of the judgment reported in 1985 P.L.J. 82, the courts below dismiss the suit of the plaintiff-appellants as barred by time?

9. The question that arises for adjudication in this appeal is whether there is any period prescribed under the law of limitation for filing a suit for possession based on inheritance.

10. The Division Bench of this Court in Kashmira Singh's case (supra) where similar issues was involved, has, in para 6 of its judgment, laid down as under:

After hearing the learned Counsel for the parties, I find force in the contention of the learned Counsel for the respondent. It is well established principle of law that inheritance does not remain in abeyance and heirs after the death of the last male holder succeed to the property of the deceased in accordance with law. Kashmira Singh, being the son of Niranjan Singh, deceased, was entitled to 1/3rd share in the land in dispute. After the death of Niranjan Singh, he was not required to file any suit for possession on the basis of inheritance. He had become full owner of his share in the property on the death of the last male-holder. For establishing his right as an heir, he was not required to file a suit. However, a situation may arise when the heir is not in possession of the property inherited. In that event a suit for possession may have to be filed and on contest the same may fail on the defendant proving that he has perfected his title by adverse possession. It is such type of suit which is governed by the provisions of Article 65 of the Limitation Act. In this view of the matter, with respect, I find that the view taken by R.N. Mittal, J. in Naginder Singh's case (supra) that it is well settled that a suit for possession on the ground of inheritance should be filed within a period of twelve years from the date when the inheritance opens, does not lay down correct law. The decisions to which reference has been made in para 9 of the judgment by the learned judge, do not lay down any such rule. On the other hand, in all those decisions it was the plea of adverse possession of the defendants which was upheld. Thus, I hold that no period of limitation is prescribed for filing a suit for possession on the basis of inheritance.

11. In view of the above, the findings recorded by the courts below that the suit for possession on the basis of inheritance filed by the plaintiffs was time-barred are erroneous as there is no period of limitation prescribed for filing of such suit. The courts below were not right in dismissing the suit as barred by time. The substantial question of law is, accordingly, answered in favour of the plaintiff-appellants and the judgment and decree passed by the courts below are set aside and the present appeal is allowed. Resultantly, the suit of the plaintiff-appellants is hereby decreed. No costs.