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2002 DIGILAW 387 (PNJ)

Jasbir Singh v. Ajit Singh

2002-04-09

ASHUTOSH MOHUNTA

body2002
JUDGMENT Ashutosh Mohunta, J. - The present regular second appeal has been filed against the judgments and decrees of the Sub Judge, 1st Class, Phillaur, dated February 12, 1987 and the Additional District Judge, Jalandhar, dated November 27, 1991, with the prayer that the said judgments and decrees be set aside. 2. Briefly, the facts of the case are that one Basant Singh was the owner of the land measuring 95 Kanals 16 Marlas situated in village Sarhali, Tehsil Phillaur. After his death he was survived by three sons and two daughters, who became owners in possession to the extent of one-fifth share each. The three sons, namely, Ajit Singh, Sohan Singh and Pritam Singh, were in possession of the land which had come to their share, as well as the share of the one of their sisters. However, the possession and ownership of the remaining one- fifth share remained with their second sister Ajit Kaur, and after her death, the same was inherited by her daughter Jasbir Kaur. The present suit is qua the land which had come to the share of Ms. Jasbir Kaur daughter of Ms. Ajit Kaur. 3. Plaintiffs Ajit Singh and his other two brothers have alleged that they filed a suit for possession against Ms. Jasbir Kaur in the year 1969 and the same was decreed in favour of the plaintiffs by the Sub Judge 1st Class, Phillaur, vide order dated January 15, 1969. The operative portion of the aforesaid order is as follows : "As per the statement of the defendant, the suit of the plaintiffs is hereby decreed for possession regarding the share of the defendant." However, Ms. Jasbir Kaur filed an appeal against this order and the same was dismissed. Despite the dismissal of the suit and the appeal, Ms. Jasbir Kaur got entered mutation No. 4989 in her favour. Thus, the present suit was filed claiming ownership and possession of one-fifth share, which had come to the share of Ms. Jasbir Kaur. The allegations in the suit were controverted, by the defendant. It was contended that her consent was obtained fraudulently and that is how the decree on January 15, 1969 was passed against her. She has further contended that the land in dispute was always in her possession and the mutation was rightly sanctioned in her favour. Jasbir Kaur. The allegations in the suit were controverted, by the defendant. It was contended that her consent was obtained fraudulently and that is how the decree on January 15, 1969 was passed against her. She has further contended that the land in dispute was always in her possession and the mutation was rightly sanctioned in her favour. Various other points were also raised, which shall be discussed subsequently, in this judgment. 4. The Sub Judge, 1st Class, Phillaur, decreed the suit of the plaintiffs vide judgment dated February 12, 1987, and the subsequent appeal filed by the defendant-appellant was also dismissed by the learned Additional District Judge, Jalandhar, vide her judgment dated November 27, 1991. 5. Mr. Vikas Bahl, learned counsel for the appellant, has argued that the plaintiffs filed the present suit for a declaration that they are the joint owners in possession of the one-fifth share belonging to Ms. Jasbir Kaur. The basis of their claim is that a decree had been passed against Ms. Jasbir Kaur by the Sub Judge 1st Class, Phillaur, on January 15, 1969, whereby the ownership and possession of the land in dispute had been decided in favour of the plaintiffs. A perusal of the order dated January 15, 1969 would reveal that the decree for possession only qua the share of the appellant had been passed in favour of the plaintiffs. Thus, the contention of the counsel is that once there was no decree with regard to the ownership of the land, a declaration to that effect could not have been passed by both the Courts below. 6. Mr. R.C. Dogra, learned counsel Senior Advocate, appearing on behalf of the plaintiff-respondents, has argued that the application before the Sub Judge, Ist Class, Phillaur, was to the effect that a decree for ownership as well as possession be passed in favour of the present respondents. Although the learned Sub Judge, Ist Class vide judgment dated January 15, 1969 granted a decree for possession only however, it should be implied that the same was also for ownership because Ms. Jasbir Kaur had stated, "I admit the claim of the plaintiffs and the suit of the plaintiffs be decreed." 7. This Court cannot read into something which has not been granted. A decree for possession only had been granted in favour of the plaintiffs vide order dated January 15, 1969. Jasbir Kaur had stated, "I admit the claim of the plaintiffs and the suit of the plaintiffs be decreed." 7. This Court cannot read into something which has not been granted. A decree for possession only had been granted in favour of the plaintiffs vide order dated January 15, 1969. If the respondents were not satisfied with the same, they should have asked for the modification of the said decree. To imply that a decree for ownership also should be deemed to have been passed in favour of the plaintiff-respondents, would be going against the tenor of the order. Thus, the very basis on which both the Courts have decided in favour of the plaintiff-respondents, is wholly illegal. When a decree for possession only had been granted, then the Courts below could not have declared the plaintiffs as owners in possession of the suit land. Thus, this finding of the Courts below is reversed. 8. The next submission of Mr. Bahl is that plaintiff Nos. 1 and 2, namely, Ajit Singh and Sohan Singh, were residing in a foreign country and they had appointed their brother Pritam Singh as their attorney to institute the present suit. Similarly, plaintiff No. 3 Pritam Singh was also residing in a foreign country and he appointed Rattan Singh as his attorney to institute the present suit. The present suit has been instituted by Rattan Singh. It has been contended by the counsel for the appellant that a constituted attorney cannot further sub-delegate the authority in favour of another person for filing the suit. In the present case plaintiff Nos. 1 and 2 had authorised Pritam Singh to file a suit on their behalf. Pritam Singh further appointed Rattan Singh to institute the suit. Thus, the counsel for the appellant has contended that the suit has been filed on behalf of the plaintiff Nos. 1 and 2 by an unauthorised person and the same has not been properly instituted. 9. I am fully in agreement with the above contention. It has been held in Pritam Lal v. Smt. Laxmi Bai, (1992-2)100 PLR 533, that unless and until a power is specifically conferred on ail attorney, such power cannot be exercised by him. As has been noticed earlier, plaintiff Nos. 1 and 2 had given their power of attorney in favour of plaintiff No. 3 Pritam Singh. It has been held in Pritam Lal v. Smt. Laxmi Bai, (1992-2)100 PLR 533, that unless and until a power is specifically conferred on ail attorney, such power cannot be exercised by him. As has been noticed earlier, plaintiff Nos. 1 and 2 had given their power of attorney in favour of plaintiff No. 3 Pritam Singh. Thus, Rattan Singh could not act as the power of attorney on behalf of plaintiff Nos. 1 and 2 and, therefore, the very institution of the suit was defective and the suit filed on behalf of plaintiff Nos. 1 and 2 must fail on this ground also. 10. It was further argued by Mr. Bahl that the decree for possession was passed in favour of the plaintiff-respondents on January 15, 1969. They never executed this decree until March 28, 1985 i.e., when their application for execution was dismissed. Thus, it would be seen that the application for execution was filed after a period of 16 years. As per the provisions of Section 136 of the Limitation Act, no execution of a decree is permissible after a period of 12 years. Consequently, the order dated January 15, 1969 was never got executed by the plaintiff-respondents. 11. As far as the question of actual physical possession of the land in dispute is concerned, it is necessary or note that the matter had gone right upto the level of the Financial Commissioner, Punjab, who decided the matter vide order dated July, 30, 1981 (Ex.DF) in favour of the appellant. On the basis of the order, mutation No. 4989 was validly sanctioned in favour of the appellant. Thus, it is clear that despite the order dated January 15, 1969 in favour of the plaintiffs, the possession was never delivered to the respondents. The possession of the land remained with the appellant. 12. As a result of the foregoing discussion, the Regular Second Appeal is allowed and the judgments and decree of both the courts below dated February 12, 1987 and November 27, 1991 are set aside. It is held that the appellant is the owner in possession of the land in dispute, i.e., one-fifth share of the land left behind by her father Basant Singh. Appeal allowed.