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2014 DIGILAW 723 (PNJ)

Kishan v. Umesh

2014-04-22

RAKESH KUMAR GARG

body2014
JUDGMENT RAKESH KUMAR GARG, J. This is plaintiff’s second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration was dismissed being time barred. As per the averments made in the suit, the defendants, namely, Bhagat Singh and Umed Singh, and one Ram Avtar (since deceased) were the real maternal uncles of the appellant and proforma respondents. The plaintiff appellant and proforma respondents were in need of money for clearing a Tractor loan, due to which their mother requested her brothers for financial help. The defendants No.6 and 7 and their deceased brother Ram Avtar agreed to help the plaintiff as well as the proforma defendants. As per the plaintiff, `90,000 were needed to make payment of the Tractor loan. Defendants No.6 and 7 and their deceased brother Ram Avtar asked for a guarantee/security for return of money and interest thereon. The plaintiff and proforma defendants told their maternal uncles that the loan will be repaid as per their requirement and they will pay 1/3rd Batai to them out of the yield from the land. They further agreed to transfer 3 acres of land out of their land in favour of their material uncles. The said proposal was accepted by their uncles. It was further pleaded that their maternal uncles gave `30,000 to their mother on the next day. As per the agreement, the plaintiff along with proforma defendants and their mother accompanied by their maternal uncles came to village Butani and further gave `30,000 to them. 3 acres of land was given to maternal uncles by way of sale deed dated 03.02.1992 out of the land comprised in Khewat No.149, Khata No.235 total Kitas 75 total area 450 Kanals 11 Marlas i.e. 480/9011 shares of total land 24 Kanals as per the Jamabandi for the year 1988-89. The remaining amount of `15,000 was to be paid by their maternal uncles after one month and the total expenses of sale deed were to be borne by the plaintiff and proforma defendants. It was also settled that whenever the plaintiff and proforma defendants will be able to repay the amount of `75,000 to their material uncles, they will transfer the land in their favour. It was further pleaded that the plaintiff and proforma defendants used to give 1/3rd Batai to the defendants No.6 and 7 and deceased Ram Avtar. It was also settled that whenever the plaintiff and proforma defendants will be able to repay the amount of `75,000 to their material uncles, they will transfer the land in their favour. It was further pleaded that the plaintiff and proforma defendants used to give 1/3rd Batai to the defendants No.6 and 7 and deceased Ram Avtar. An application for partition was filed by Narain Singh etc. on 07.10.2001 before the AC (2nd Grade), Pillukhera. At that time, the plaintiff along with the Panchayat went to his maternal uncles in the month of October 2001 and requested them that the land given by them should be included in their Khata and also told them that they are ready to make payment of `90,000. After waiting for six months, the plaintiff again went to the house of defendant No.6 and his real brother Ram Avtar in the month of March 2002 and again requested them to transfer the land in their favour as they were ready to make payment of `90,000 to them; however, they did not turn up. Thereafter, again mother of the plaintiff and proforma defendants went to village Jarodha Majra in the month of August 2002 to decide the matter amicably, but nothing was done. It is further case of the plaintiff appellant, that defendants No.6 and 7 along with Ram Avtar told the plaintiff and his brothers that joint Khata be separated first and thereafter everything will be settled. They continued to give 1/3rd Batai regularly till the death of Ram Avtar and after his death, defendants No.1 to 5 were impleaded in the partition application pending before the Commissioner, Hissar Division, Hissar. The plaintiff again requested the defendants to transfer the land in dispute in favour of the plaintiff and proforma defendants as they were ready to make payment of `90,000, but nothing happened. Thereafter, the defendants came to village Butani and tried to take possession of the land in dispute forcibly in the month of November 2007 and further threatened to alienate the said land. Thus, necessity arose to file the instant suit. Upon notice, defendants No.1 to 7 appeared and filed written statement raising various preliminary objections. On merits, it was averred that suit land was not joint as the Khewat was already partitioned. It was further averred that the plaintiff had cooked up a false story in order to usurp their land. Thus, necessity arose to file the instant suit. Upon notice, defendants No.1 to 7 appeared and filed written statement raising various preliminary objections. On merits, it was averred that suit land was not joint as the Khewat was already partitioned. It was further averred that the plaintiff had cooked up a false story in order to usurp their land. The story of taking loan by the plaintiff and proforma defendants was stated to be false. It was further averred that the plaintiff and proforma defendants initiated partition proceedings in the year 2003 before the Court of AC (2nd Grade) Pillukhera, who vide order dated 19.05.2004 confirmed Naksha Beand vide order dated 27.04.2006 issued Sanad Taksim. Against the aforesaid order, the plaintiff and proforma defendants filed an appeal, which was dismissed by the Collector, Sub Division, Safidon vide order dated 09.02.2006 and the revision petition was pending before the Commissioner, Hissar Division, Hissar. Further as per the defendants, the sale deed in question was executed by the plaintiff genuinely and thus, the suit was liable to be dismissed. The trial Court framed the following preliminary issue: “Whether the suit of the plaintiff is time barred? OPD” After considering the evidence adduced by both the parties in support of their respective claims and hearing learned counsel for the parties, the trial Court vide its judgment and decree dated 16.04.2011 decided the aforesaid issue of limitation against the plaintiff and consequently, the suit was dismissed with no order as to costs. The appeal filed by the plaintiff against the aforesaid judgment and decree of the trial Court was also dismissed by the lower appellate Court vide its judgment and decree dated 17.04.2013. Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether the findings of the lower courts are based on surmises and conjectures and suffer from perversity, being contrary to evidence on record and settled principles of law? 2. Whether the suit for declaration of the plaintiff/appellant is within limitation? 3. Whether the right to sue in a declaratory suit accrues on the infringement of condition of compromise? 4. Whether grave and manifest injustice has been occurred to the appellant/plaintiff? 2. Whether the suit for declaration of the plaintiff/appellant is within limitation? 3. Whether the right to sue in a declaratory suit accrues on the infringement of condition of compromise? 4. Whether grave and manifest injustice has been occurred to the appellant/plaintiff? In support of his case, counsel for the appellant has vehemently argued that the courts below have failed to appreciate the fact that limitation was to start when the condition of compromise between the parties was infringed. According to the appellant, the defendants refused to retransfer the land in question in favour of the plaintiff appellant and the proforma respondents in the month of November 2007 and tried to take possession of the land in question forcibly from them, and thus, the limitation period should have been considered from November 2007 and not from the date of execution of the sale deed or sanction of mutation. According to the plaintiff appellant, it was orally agreed between the parties that the land in dispute shall be retransferred in their name on return of 90,000; whereas the defendants have backed out from their promise and refused the appellant his claim, and thus, the impugned judgments and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. Admittedly, the sale deed in question was executed on 03.02.1992 and subsequently mutation No.2131 was sanctioned in favour of the defendants on 30.03.2002. It is further not in dispute that on the basis of the aforesaid sale deed and mutation, revenue entries were made in favour of the defendants. The argument, as raised before this Court to the effect that cause of action had arisen to the appellant only in November 2007 on refusal of defendants from retransferring the land in question in their favour, is not substantiated from the evidence on record. There is nothing on record to support the aforesaid argument of the appellant. It may further be noticed that the appellant himself was a party to the sale deed in question and the same was to his knowledge from the very beginning. There is nothing on record to support the aforesaid argument of the appellant. It may further be noticed that the appellant himself was a party to the sale deed in question and the same was to his knowledge from the very beginning. Even if cause of action is taken from the date of sanctioning of mutation dated 30.03.2002, the present suit was filed by the appellant in the year 2008; whereas under Article 58 of the Limitation Act, the period of limitation starts running from the date when the right to sue first accrues and the limitation is three years only. Not only this, it is a matter of record that in the partition proceedings, the suit property as well as other properties of the parties to the suit had already been partitioned and the said fact has not been disclosed by the plaintiff appellant. In view thereof, no exception can be taken to the findings recorded by the courts below that the suit was time barred. Thus, the substantial questions of law, as raised, do not arise at all in this appeal. Dismissed.