BALWANT SINGH Vs. GURBACHAN SINGH

JUDGEMENT

(1.) This appeal by grant of special leave is directed against the judgment of Punjab & Haryana High Court dated September 28, 1978. The short controversy raised in the present case is regarding the date from which the period of limitation shall commence under Article 137 of the Limitation Act, 1963. According to the facts found established on record, Gurbachan Singh -respondent was delivered actual possession of 135 kanals of land and symbolical possession of 62 kanals, 13 marlas on June 13, 1963 in execution of decree for pre -emption obtained by him. According to the decree, Gurbachan Singh was only entitled to actual possession of 135 kanals of land so far as the delivery of symbolical possession was concerned, it was beyond the terms of the decree. Ladha Singh, father of the appellants having come to know about the said mistake, filed a suit for declaration and for permanent injunction in the year 1965. The said suit was decreed in favour of Ladha Singh and the said declaratory decree was affirmed in appeal by Additional District Judge on May 12, 1969, but the relief of injunction was denied, as Ladha Singh was in actual possession of the portion over which symbolical possession was recorded in execution proceedings. It remains undisputed that the aforesaid judgment given by the Additional District Judge, Karnal dated May 12, 1969 became final.

(2.) Gurbachan Singh now filed a suit for partition in the year 1973 claiming not only 135 canals on which he had obtained actual physical possession, but also 62 canals and 13 morals on which he had been granted symbolical possession in the execution proceedings in 1963. After the filing of the suit for partition, the appellants filed an objection petition under Sections 47/152/51 of the Code of Civil Procedure praying that necessary correction may be made in revenue record by restitution of excessive area wrongly delivered to the decree -holder. The respondent -decree -holder contest the above application. Apart from the other objections, one of the ground raised was that the objection petition was barred by limitation as the same was not filed within three years of the order dated June 13, 1963 under which the symbolical possession was given to the decree -holder. The learned Sub -Judge First Class, Karnal held that the limitation will only start to run when the respondent -decree -holder tried to interfere in the possession of the petitioners by filing the petition proceedings in the year 1973. It was also held that the decree -holder had already obtained possession of the area measuring 135 canals to which he was entitled under the decree and he was not entitled to retain the possession of the excessive area of 62 canals, 13 morals of which only symbolical possession was given to him. It was thus, and that the possession of the land measuring 62 canals, 13 morals of which symbolical possession was obtained was to be restored in favour of the objector - judgment -debtor.

(3.) Aggrieved against the aforesaid order, the decree -holder filed a revision before the High Court. Learned Single Judge allowed the revision on the ground that the limitation in case of such applications is three years and as the symbolical possession had been delivered on June 13, 1963, the present application filed on July 22, 1973 was barred by time. The High Court further held that actual possession of the land was never delivered by the executing court and it was only symbolical possession which was delivered. Thus, for the purpose of restitution, if at all, there was necessity to move the application, the same could be done within three years from the date of the delivery of the symbolical possession. The High Court, as such allowed the revision and set aside the order of the executing court and dismissed the application filed by the judgment -debtor.