KEHRU Vs. CHINTO

JUDGEMENT

(1.) DEFENDANTS have come up in regular second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Court and decreeing the plaintiffs' suit for possession of the property.

(2.) THE facts :-Jaimal was father's father's brother of the plaintiff respondent. He owned 1/2 share in the suit land a vacant site. He sold his share in the suit land and the vacant site to the defendant-appellants vide sale deed dated April 6, 1957 for a fictitious consideration of Rs. 5000/ -. Jagir Singh, real brother of the plaintiff respondents successfully challenged the sale through a declaratory suit filed under the provisions of Punjab Customs (Power to Contest) Act, 1920 (Act No. 2 of 1920 ). The suit was decreed by this Subordinate Judge vide judgment and decree dated April 30, 1959. On appeal by the defendant- appellants, the judgment and decree of the trial Judge were partially modified and the suit was decreed qua the agricultural land but it was dismissed qua the vacant site. Defendant appellants can up it second appeal to this Court and the same was registered as R. S. A. No. 508 of 1960. It was decided on January 16, 1970. The judgment and decree of the first appellate Court were maintained except 9 kanals 18 marlas out of the suit land and the vacant site, which were the subject-matter of sale. Jai Mal, vendor, died on July 24, 1969 during the pendency of the regular second appeal. After his death, Jagir Singh, brother of the plaintiff-respondents, filed a suit for possession of the land which was the subject-matter of the declaratory suit, regarding which the appeal was pending in this Court Proceedings in the suit were stayed on account of pendency of the regular second appeal in this Court. However, after the decision of the regular second appeal, the suit for possession filed by Jagir Singh was revived and the same was dismissed qua 3/4th share of the suit land. The sisters of Jagir Singh filed the present suit for possession on the ground that they were hens of Jai Mal, vendor. The trial Court dismissed the suit only on the ground that they had failed to prove their relationship with Jai Mal deceased. On appeal, the first appellate Court reversed the judgment and decree of the trial Court and held that the plaintiffs had conclusively established by evidence their relationship with Jai Mal deceased and they had a right to succeed to the estate left by the deceased, along with their brother Jagir Singh. The defendants have cone up in regular second appeal to this Court.

(3.) LEARNED counsel for the appellants has not assailed the finding of the first appellate Court holding that the plaintiffs are the heirs of Jai Mal deceased, and they arc entitled to succeed to the Property left by the deceased alongwith their brother Jagir Singh. He submitted that the suit filed by the plaintiffs was barred by time. This plea was neither taken in the written statement nor was it raised before the Courts below. It has been raised in this Court for the first time. The question of limitation, no doubt, is a pure question of low and it can be allowed to be raised in second appeal when the facts are patent on the record and no evidence is required for adjudicating the plea of limitation. Section 5 of the Punjab Limitation (Custom) Act, 1920 (for short, the Act) says that subject to the provisions contained in Sections 4 to 25 (inclusive) of the Indian Limitation Act, 1908, and notwithstanding, anything to the contrary contained in the first schedule of the said Act, every suit of any description specified in the schedule annexed to this Act instituted after the period of limitation prescribed therefor in the schedule shall be dismissed, although limitation has not been, set up as a defence. It is in a mandatory form. Even if the bar of limitation is not pleaded the Court has to take judicial notice of the fact whether the suit which falls within the purview of this Act is within limitation. The period of limitation for a suit for possession, where declaratory decree has been obrained, is provided in the schedule appended to the Act. Article 2 of the Schedule reads as under : description of suit Period of Time from which period limitation begins 2. A suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom---- (a) if no declaratory 6 years The date on which the decree of the nature alienation comes to the referred to in Article knowledge of the plaintiff. 1 is obtained (b) if such declaratory 3 years The date on which the right decree is obtained to sue accrues or the date on which declaratory decree is obtained, whichever is later. " A suit for possession has to be filed if a declaratory decree has been obtained under the provisions of Punjab Customs (Power to Contest) Act within three years from the date on which the right to sue accrued or the date on which the declaratory decree is obtained, whichever is later. In the instant case, the right to recovery possession accrued on the death of Jai Mal. The regular second appeal was decided by this Court on January 16, 1970, affirming a declaratory decree passed by the first appellate Court. If the limitation is counted from the date of decision of second appeal by this Court, the suit for possession ought to have been filed on or before January 15, 1973. If the limitation is to be counted from the date of death of Jai Mal deceased, which took place on July 24, 1969, the suit for possession ought to have been filed by July 23, 1972. The suit in the instant case was filed on 15th/17th December, 1973. The regular second appeal was decided on January 16, 1970 and if the limitation period of three years is counted from this date, the suit could be filed on or before January 15, 197 (sic), but it was filed on December 14, 1973, although it was registered on December 15/17, 1973, obviously after the expiry of three years. The suit was filed beyond the period of limitation. The conclusion arrived at by the first appellate Court that the plaintiffs had succeeded in establishing their relationship with Jai Mal deceased is unexceptional and the learned counsel for the appellants has not assailed the conclusion arrived at by the first appellate Court. However as observed earlier, the suit was filed beyond limitation and is Halite to be dismissed on this ground alone.