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2023 DIGILAW 977 (PNJ)

Balbir Singh @ Raghbir Singh v. Onkar Singh

2023-03-09

RAJBIR SEHRAWAT

body2023
JUDGMENT Rajbir Sehrawat, J. (Oral) - The plaintiff has filed this regular second appeal assailing the judgment and decree dated 15.01.2010 passed by the Additional District Judge, Gurdaspur, whereby, the original judgment and decree passed by the trial court, decreeing the suit of the appellant/plaintiff, have been reversed and the suit filed by the appellants has been ordered to be dismissed. 2. The brief facts, as involved in the present appeal, are that the originally land was owned by one Rasia Ram. He had four sons and four daughters. The appellant-plaintiff is son of Kirpal Singh son of Rasia Ram. Whereas, the defendants are sons of Beli Ram son of Rasia Ram. In the first instance, after death of Rasia Ram the names of the plaintiff, as well as, the respondents were reflected in the revenue records. The jamabandi for the year 1981-82 contained the name of the appellant as co-sharer with the respondents in the land left behind by Rasia Ram. However, in subsequent years, the name of the appellant was deleted from the jamabandis for the years 1986-1992. The appellant was never given any notice before effecting these changes in the revenue records. The respondents tried to alienate the suit land on the basis of the entries in the jamabandi, damaging the interest of the appellant. Hence, the suit was filed by the appellant, seeking therein a decree to the effect that the plaintiffs are owner in possession of the suit land to the extent of 2/12 share out of joint khata of the holding of the land left behind Rasia Ram: and a further injunction restraining the defendants from alienating the suit land till partition of the same. Only defendants No.l and 2 contested the suit. The defendants No.3 to 5 supported the case of the plaintiffs and the remaining defendants were proceeded ex parte. 3. The trial court had decreed the suit filed by the appellant and declared that the appellant-plaintiffs are the owner to the extent of 2/12 share out of joint khata land and further; restrained the respondents from alienating the suit land till partition. Accordingly the entries in the jamabandi for the years 1986-1992 were declared to be illegal and null and void not affecting the rights of the appellant. The respondents-defendants No.l & 2 preferred appeal against the said judgment and decree. Accordingly the entries in the jamabandi for the years 1986-1992 were declared to be illegal and null and void not affecting the rights of the appellant. The respondents-defendants No.l & 2 preferred appeal against the said judgment and decree. The lower appellate Court has reversed the judgment and decree passed by the trial court; and has ordered dismissal of the suit. 4. Arguing the case the learned counsel for the appellant has submitted that the lower appellate court has gone totally wrong in law in reversing the well reasoned judgment and decree on the ground which are not even germane to the controversy. One of the main reasons given by the lower appellate court for reversing the judgment and decree of the trial court is that the name of plaintiff No.l was reflected as Raghbir Singh instead of Balbir Singh in the initial jamabandi for the year 198182. The lower appellate court also relied upon the fact that the appellant had not produced any pedigree table to show his status as son of Kirpal Singh and grandson of Rasia Ram. The counsel has submitted that these facts are irrelevant because defendants No.3 to 5 had admitted in their written statement that the plaintiffs were the sons of Kirpal Singh son of Rasia Ram and therefore, they were the co-sharer in the land. Even the other defendants had not disputed this fact. Rather, they admitted plaintiffs to be the co-sharers in the land left behind by Rasia Ram. So far as defendants No.l and 2, are concerned, even they had not raised issue of identity of plaintiff No.l being Balbir Singh alias Raghbir Singh. Accordingly, it is submitted by the counsel for the appellant that since the factum of the identity of plaintiff No.l was not even disputed by either of the parties, rather, the factum of the plaintiffs being co-sharer was specifically admitted by defendants No.3 to 5, therefore, the suit of the appellant could not have been ordered to be dismissed by the appellate court on the ground of alleged dispute regarding identity of plaintiff No.l. The counsel for the appellant has further submitted that the lower appellate court has wrongly introduced the concept of ancestral property in the proceedings. Even if the property is not ancestral, once the property is, undisputedly, coming from Rasia Ram, it was a joint holding of the parties, though may not have qualified to the level of being an ancestral property. It is not even the case of the contesting defendants that they had ever acquired the share of the appellant-plaintiffs by any other legal means than inheritance. The defendants have not even disputed the factum regarding the property being joint, rather, they have themselves claimed to be the share holder in joint khata. Qua the limitation aspect, the learned counsel for the appellant has submitted that the lower appellate court has wrongly taken the suit filed by the plaintiffs to be time barred. Since they were claiming the declaration on the basis of title as co-sharer, therefore, there is no question of any limitation being involved in the suit. Mere wrong entries in the revenue record cannot be sufficient to defeat the claim of the plaintiffs qua inheritance, hence, the court has gone wrong in allowing the appeal filed by the defendants and dismissing the suit filed by the plaintiffs. 5. On the other hand, the counsel for the respondents- defendants has submitted that the lower appellate court has rightly recorded the finding that the plaintiffs have played fraud upon the court by wrongly presenting the identity before the court. Still further, it is submitted that the court below has rightly held the suit filed by the plaintiffs to be the time barred. The defendants have been in long open and hostile possession of the suit property, therefore, the suit was required to be filed within a period of three years or, at the best, within a period of 12 years. However, the suit has been filed much beyond that limitation. 6. Having heard the counsel for the parties and having gone through the case file, this court finds substance in the arguments raised by counsel for the appellant. It is not even in dispute that the land in question has been inherited from Rasia Ram. The plaintiffs have claimed to be sons of Kirpal Singh. There is no specific denial of this fact by defendants No.l and 2 qua the paternity of the plaintiff. It is not even in dispute that the land in question has been inherited from Rasia Ram. The plaintiffs have claimed to be sons of Kirpal Singh. There is no specific denial of this fact by defendants No.l and 2 qua the paternity of the plaintiff. So far as respondents No.3 to 5 are concerned, they have specifically admitted that the plaintiffs are co-sharers in the suit property and the property had devolved upon the plaintiffs and defendants being the grandsons of Rasia Ram. Therefore, there was no dispute left regarding the identity of the plaintiffs; as such. Not only that, the issue of difference of name of plaintiff No.l as Balbir Singh or Raghbir Singh has not even been agitated by either of the parties. The court below has unnecessarily emphasized the fact, which appears to have been wrongly recorded in the revenue record because appellant Balbir Singh alias Raghbir Singh, who is the co-sharer in the suit land, cannot be son of defendant No.4-Bhano Devi daughter of Kirpal Singh, being sister of Balbir Singh alias Raghbir Singh. Therefore, that entry is, on the face of it, wrongly recorded. Hence, that entry in the revenue record, which was not even emphasized by the defendants, and for the right reasons, could not have been made a ground by the lower appellate court for dismissing the suit filed by the plaintiffs by reversing the judgment and decree passed by the court below. So far as the nature of the land, whether the same was ancestral or not, is concerned, the same is also not relevant because it is the case of the parties themselves that it was a joint holding coming from Rasia Ram. Therefore, whether the jointness of the interest had matured in the property being ancestral or not, is totally irrelevant in the present controversy. Once defendants No.3 to 5 specifically admitted the property to be joint, coming from Rasia Ram and of the plaintiffs and defendants having share in the property, the issue of nature of the suit property as ancestral property looses significance altogether. 7. Even on the issue of limitation this court finds substance in the arguments raised by counsel for the appellant. 7. Even on the issue of limitation this court finds substance in the arguments raised by counsel for the appellant. It is not even the issue that the appellant has filed the suit for getting himself declared as owner to the extent of 2/12 share in the property as co-shares, therefore, his prayer for declaration being based on title cannot be marred by the prescription of the limitation. Although the defendants have tried to put an argument, which is in the nature of plea of adverse possession, so as to introduce the element of limitation in the same, however, even the concept of adverse possession would not be maintainable against the cosharers. It needs no emphasis that possession of one co-sharer is the possession of all of them. Therefore, when the suit is between co-shares only, the limitation could not have been a ground for dismissal of the suit. Hence, the court below has wrongly reversed the findings recorded by the trial court. 8. In view of the above, this court finds merit in the arguments raised by counsel for the appellants. Accordingly, findings recorded by the lower appellate court are set aside. The judgment and decree passed by the trial court are upheld. 9. Accordingly, the appeal is allowed in the above said terms.