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1978 DIGILAW 532 (ALL)

Parsottam v. Ram Das

1978-05-09

G.S.SIAL

body1978
JUDGMENT G.S. Sial, Member. - In this case respondent No. 3 had died on August 25, 1971 according to the respondent but the substitution application was filed on January 29, 1974 stating that he had died on November 26, 1973. A counter affidavit was filed to the effect that Sumer, respondent No. 3 had died on August 25, 1971 supported by an extract of death register. In para 2 of the application filed by the appellant it was stated that the respondent has himself made an application showing the date of death of sumer in 1973. 2. The learned counsel for the respondent stated that there is no application on the record to show that the respondent had made any application showing the date of death of sumer in 1973. Further the statement made in para 3 of the rejoinder application is also not correct as there is no admission of the contesting respondent. 3. The learned counsel for the appellant in reply referred to the certified copy of the application dated February 18, 1974 filed by Ram Das respondent wherein he has admitted the date of death of Sumer as November 26, 1973. Thus the date of death cannot be under dispute. The copy of the death register does not appear to be genuine as it does not contain the signature of the informant and therefore, cannot be relied upon. 4. I have considered the arguments and gone through the papers regarding the substitution matter. A copy of the application dated October 19, 1976 was found. A. Prasad, which establishes that the copy of the application was given to him. Therefore he had full knowledge of paras 2 and 3 of the application wherein it is stated that the contesting respondent has himself admitted the date of death of Sumer as November 26, 1973. Therefore he cannot now take the stand that he was not given the copy of enclosure. In view of the circumstances stated above I hold that the substitution is within time and is accordingly allowed. On merits, briefly the facts of the case are that the plaintiffs brought the suit under Sec. 209 of the U.P.Z.A and L.R. Act alleging that they are landholder in possession of the land in suit. They also claimed to be the Bhumidhar of the land in suit and that the defendant is said to have no concern with it. On merits, briefly the facts of the case are that the plaintiffs brought the suit under Sec. 209 of the U.P.Z.A and L.R. Act alleging that they are landholder in possession of the land in suit. They also claimed to be the Bhumidhar of the land in suit and that the defendant is said to have no concern with it. It was alleged that during consolidation proceedings the plaintiffs were held to be the Bhumidhars of the land in suit up to the Hon'ble High Court but the defendant was found to be in possession under proceedings were 145, Cr.P.C. and on account of this the defendants were recorded under class IX in consolidation. Hence the suit for declaration and in the alternative for possession if the plaintiffs are found to be out of possession and Rs. 2,000.00 as damages in addition to cost. The defendants contested the suit with the allegations that there has been consolidation in the village and under proceedings under Section 145, Cr.P.C. the defendants were found to be in possession and are in possession as such and therefore the suit is barred by time and they have acquired Sirdari rights under Sec. 210 of the U.P.Z.A and L.R Act. They denied the right and title of the plaintiffs over the land in suit and claimed that the suit is barred by Article 47 of the old Limitation Act. The trial court dismissed the suit of the plaintiff holding that the consolidation courts were wrong in declaring the plaintiffs as Sirdar of the suit land and that the plaintiffs were not in possession. It held that the defendant was in possession for more than 6 years and had acquired Sirdari rights under Sec. 210 of the U.P.Z.A and L.R Act. The lower appellate court observed that admittedly the land in suit was under consolidation operations and the plaintiffs were declared Sirdars under consolidation proceedings and the S.O.C and the village was de-notified on January 30, 1965 but still went on record that as the possession of the defendants started in 1960 under proceedings 145, Cr.P.C. the suit was barred by limitation of 3 years, the suit having been filed on July 6, 1968. 5. 5. The learned counsel for the appellant submitted that it is settled law that the period of possession during consolidation operations or prior to that has no sanctity for maturing rights under S. 210 of the UPZA and LR Act. He stated that in this case the village was de-notified under S. 52 of the CG Act on January 30, 1965 and therefore, the limitation under S. 210 of Z.A. and L.R. Act will start to after this date. He argued that in 1963 the provisions of Article 47 of old Limitation were deleted and no provision was made in the new limitation Act. At the time the suit was filed the period of limitation for acquiring rights under S. 210 was 6 years and therefore, the suit was not barred by limitation. The courts below have wrongly dismissed the suit of the plaintiff holding it to be time barred. 6. The learned counsel for the respondent conceded that the period of limitation during consolidation will be suspended but submitted that he will show a ruling that on the date of the suit the period of limitation for acquiring rights was three years and therefore, the courts below have rightly dismissed the suit. 7. I have considered the arguments and gone through the record of the case. The facts of the case are simple. Consolidation has taken place in the village and admittedly the village was de-notified on January 30, 1965. The suit was filed on July 6, 1968, i.e., after lapse of 3 years and a half. The learned counsel for the respondent admitted that the law on the point is clear that the possession if any during consolidation prior to that will bot be recorded while computing the period of limitation under section 210 of the UPZA and LR Act. Thus the only point to be seen is whether the suit of the plaintiff is hit by limitation because it was not brought within 3 years after the date of de-notification of the village in suit. The learned counsel for the appellant has shown me the law that the period of limitation for perfecting rights was 6 years. The learned counsel for the respondent has not been able to show me any law that the period of limitation was 3 years. The learned counsel for the appellant has shown me the law that the period of limitation for perfecting rights was 6 years. The learned counsel for the respondent has not been able to show me any law that the period of limitation was 3 years. Therefore taking the view that the period of limitation for perfecting rights under Sec. 210 was 6 years I am of the view that the judgments of the courts below are not correct, since they have based their decision in the view that the period of limitation was 3 years. Accordingly the orders of the courts below are set aside and the suit of the plaintiff stands decreed. With costs and counsel's fee of Rs. 30/-.