SHAMBHU RAM Vs. HARNEK SINGH

JUDGEMENT

(1.) The three plaintiffs, who are brothers, filed a suit for possession of plot measuring 67,450 sq. ft. on the allegations that according to the plaintiffs, the plot in dispute was owned by the following persons and they had shares as detailed against each :- (1) Mohan Mal (plaintiffs' father) 3 shares. (2) Masania (relation of Mohna Mal) 3/8 shares. (3) Sondhi, Harditta and Gauri (relations of Mohna Mal) jointly3/8 shares. (4) Jit Mal 3 shares. (5) Jainti Parshad 1 share. (6) Ram Chand (relations of Mohna Mal) 1 share. The total shares came to 83/4. The aforesaid shares were purchased on 16-91898. On 10-12-1903, Jit Mal sold his three shares to Mohna Mal. On 27-31914, Jainti Parshad sold his one share to Mohna Mal. Ram Chand, Sondhi, Harditta and Gauri, who jointly held 1 3/8 shares, died issueless and, therefore, their shares were inherited by Mohna Mal and Sunder as would be clear from a reading of the pedigree table reproduced in the judgment of the trial Court. In this manner, the plaintiffs claim that the Mohna Mal had 7 1/8 shares out of which in Sept., 1941, he gifted two Bighas to land to Jain Sabha and since one share was equal to one Bigha, therefore, he was left with the ownership of 5 7/8 shares. Out of the total suit-land, the plaintiffs claim to be owners of 58,690 sq. ft.; whereas Milkhi Ram (defendant No. 2)(who is one of the great- grand children of Sunder) owns 2920 sq. ft. and the rest of the land is owned by defendants 3 to 7, who are the remaining descendants to Sunder. In the year 1959, dispute about the possession of the plot arose in which one Karnek Singh (who is defendant No. 1 now) alleged that he was in possession of the same as a lessee of Milkhi Ram. Ultimately, proceedings under Sections 145, Cr. P.C. were started in which by order dated 17-10-1960, the S. D. M. found that Harnek Singh was in possession of the entire land and allowed him to continue to possession. Against the aforesaid order, the present plaintiffs went up in revision before the learned Sessions Judge who dismissed the same on 22-1961. A copy of the said order is Exhibit D-5. Thereafter, the present plaintiffs filed a civil suit to challenge the order of the S. D. M. as being illegal, null and void, but their suit failed up to the Letters Patent Bench of this Court. The L. P. A. was dismissed on 5-1-1968 and it was finally observed that the plaintiffs could file a suit of possession. Consequently, on 17-4-1968 the present suit for possession was filed which was contested only by Milkhi Ram and Harnek Singh. Pleas of adverse possessions, res judicata because of earlier suit and the suit being barred by limitation, were raised.

(2.) On the contest of the parties, the following issues were framed :-

(3.) After evidence was led, the trial Court found under issue No. 1 that the plaintiffs were the owners of 4 7/8 shares. Union issue No. 2, it was held that the suit was barred by limitation as under Article 47 of the old Limitation Act, the suit had to be filed within three years of the order of the S. D. M. but the same was filed beyond that period. No arguments were raised on issues 3 and 4, therefore, they were decided against the defendants. Issue No. 5 was decided against the plaintiffs. Under issue No. 6, it was found that the gift made by Milkhi Ram (defendant No. 2) in favour of his wife (defendant No. 8) beyond his share of 7/24, was not valid. Issue No. 7 was held in favour of the plaintiffs and the suit in the present form was held to be maintainable. Issue No. 8 was decided against the defendants. Under issue No. 9, it was held that the defendant No. 2 had failed to prove that he had become owner by adverse possession. Issue No. 10 was also decided against the defendant. In view of findings on issue No. 2 that the suit was barred by limitation, the suit was dismissed by judgment and decree dated 26-8-1971. This is plaintiffs' first appeal.