DHANPAT Vs. KESAR

JUDGEMENT

(1.) THE defendants have filed this appeal to challenge the judgment and decree dated 21.10.1982 passed by the Additional District Judge, Kurukshetra, whereby the suit for declaration filed by Smt. Kesar and Mst. Jehro, respondent Nos. 1 and 2, has been decreed by setting aside the judgment and decree dated 15.4.1981 passed by the Sub Judge Ist Class, Kaithal.

(2.) BRIEFLY , the facts of the case are that Smt. Kesar and Smt. Jehro filed a suit for declaration to the effect that they are owners in possession of the suit land left behind by their brother Duni Chand, who died issueless in the year 1951. According to them the defendants got the mutation entered in their favour in the year 1953 without notice to them, which fact came to their notice in the year 1972 when the defendants refused to pay the Batai to them. The suit was contested by the defendants who pleaded that the plaintiffs are not the sisters of Duni Chand deceased and that they being collaterals, the mutation was got entered in their name. They also pleaded that the suit was barred by time and that they had become owners by way of adverse possession. On the pleadings of the parties, the Sub Judge Ist Class, Kaithal, framed a number of issues. However, the suit was dismissed on the ground of limitation and the uninterrupted and continuous adverse possession of the defendants since the year 1953. However, the plaintiffs were held to be the sisters of Duni Chand defendant and owners of the suit property being the only heirs of their deceased brother Duni Chand. The judgment passed by the trial Court was challenged in appeal. The Additional District Judge, Kurukshetra, vide the impugned judgment dated 21.10.1982 accepted the appeal and set aside the judgment and decree dated 15.1.1981 passed by the Sub Judge Ist Class, Kaithal, by holding that the suit was within limitation and that the defendants being co-sharers had failed to prove their adverse possession of the suit property. Now the defendants have filed the present appeal to challenge the judgment and decree dated 21.10.1982 passed by the Additional District Judge, Kurukshetra.

(3.) IT has been contended by Mr. H.S. Hooda, learned Senior Advocate, appearing for the defendant-appellants that mutation in favour of the appellants was sanctioned on 12.12.1953 and since then they remained in uninterrupted possession from any quarter whatsoever. He contends that even if the plaintiffs claim themselves to be the legal heir of Duni Chand deceased on the basis of their sanguinity with him even then their claim is of no use in the face of the adverse possession of the defendants, which is notice and uninterrupted ever since the mutation (Ex. D3) was sanctioned in their favour in the year 1953. The plaintiffs filed the suit in the year 1973, i.e., after about 20 years of the sanction of the mutation in favour of the defendants. He further contends that the Jamabandi for the year 1955-56 bears witness to the fact that the defendants had stepped into the shoes of Duni Chand deceased. According to the learned counsel for the appellants, the version of the plaintiffs that the defendants used to give Batai in lieu of their cultivating possession over the suit land is without any basis. No document has been adduced in evidence to corroborate the version of the plaintiffs. In support of his contention Mr. Hooda has placed reliance on Bondar Singh and others v. Nihal Singh, 2003(2) RCR(Civil) 222 (SC) and Parsinni (Dead) by L.Rs. v. Sukhi, 1993(3) RRR 681 (SC). Further contention raised by Mr. Hoods is that the suit of the plaintiff was hopelessly barred by time. He contends that the defendants remained in possession of the suit land ever since the death of Duni Chand deceased. Anyhow, they legally perfected their adverse possession in the year 1953 when mutation was sanctioned in their favour. Since the year 1953, the plaintiffs kept silent and they filed the present suit only in the year 1973, which is barred by limitation.