Ramesh & ANR v. Satnarian & ORS

{1}

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH Date of decision:16.08.2016 Ramesh Kumar and another ... Appellants Vs.

Satnarian (since deceased) through LRs and another ... Respondents

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Kulvir Narwal, Advocate for the appellants.

AMIT RAWAL J. (Oral) Appellant-defendants are aggrieved of the concurrent findings of facts and law, whereby, suit of the respondent-plaintiff seeking declaration of the judgment and decree dated 08.04.1994, has been set aside and they have been restrained from dispossessing the plaintiff from the joint possession of the suit land.

Mr. Kulvir Narwal, learned counsel appearing on behalf of the appellant-defendants submits that Article 58 of Limitation Act would apply as the suit had been filed on 04.04.2008 challenging the aforementioned judgment and decree. No explanation of delay has been explained. The application seeking mutation of the property on the basis of the sale deed executed by defendant No.1 in favour of the plaintiff, was also rejected and thus, he had knowledge and cause of action arose to challenge the same, therefore, applicability of provisions of Article 59 of Limitation Act, would

{2} not arise. The plaintiff had not sought the relief yet he had been accorded the status of co-owner and therefore, both the Courts below have not noticed the aforementioned facts, thus, there is illegality and perversity in the judgments and decrees.

I have heard learned counsel for the appellant-defendants and appraised the judgments and decrees of the Courts below. Article 58 of the Limitation Act came to be debated upon by the Hon'ble Division Bench of this Court in Ibrahim alias Dharam Vir vs. Smt. Sharifan alias Shanti 1979 PLJ 469 by holding therein that whether mere entry of mutation in the name of defendant would furnish a cause of action to plaintiff to file a suit for declaration or not and plaintiff continued to be in possession of property even after sanction of mutation in the name of defendant. No cloud cast on title of plaintiff by mere entry of mutation in the name of defendant. The cause of action arose to plaintiff when defendant actually threatened to take forcible possession of land from plaintiff.

The instant case is a case of such kind where the plaintiff had sought to invoke the provisions of Article 59 of Limitation Act and decree is sought to be cancelled or set aside, when known to him. It is conceded position on record that Jhoothar-defendant No.1, who intentionally was proceeded ex parte before the Court below, the father of the appellant/defendants No.2 and 3, had agreed to sell the land to plaintiff, vide sale deed dated 03.11.1993. In the meantime, the alleged judgment and decree dated 08.04.

{3} came in existence. Admittedly, the respondent-plaintiff has been held coowner of the land described in the sale deed dated 14.06.1994. In my view, such an attempt is to thwart the rights of the respondent-plaintiff. Had it been so, defendant No.1, ought not to have executed and registered the sale deed dated 14.06.1994, the defendants have not challenged the same even by setting up a counter claim. All these factors cannot be ignored for adjudication of the lis. By noticing the facts narrated above, I am of the view that suit has rightly been decreed by both the Courts below after appreciating the oral and documentary evidence. Thus, there is no illegality and perversity in the judgments and decrees of the Courts below, much less, no substantial question of law arises for adjudication of the present appeal. No ground is made out for interference in the impugned judgments and decrees.

Accordingly, the appeal stands dismissed.

(AMIT RAWAL) JUDGE August 16, 2016 savita Wheather speaking/reasoned Yes/No Whether Reportable Yes/No