BALWANT SINGH Vs. GURUBACHAN SINGH

JUDGEMENT

(1.) THIS appeal by grant of special leave is directed against the judgment of Punjab and 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 and 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 the 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 has now filed a suit for partition in the year 1973 claiming not only 135 kana Is on which he had obtained actual physical possession, but also 62 kanals and 13 marlas 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 47/152/151 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 contested 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 the46ymbolical possession was given to the decree -holder.

(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 resitution, if at all, there was a 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.