MUNSHA SINGH SUNDER SINGH Vs. GURUDIT SINGH

JUDGEMENT

(1.) THESE three appeals (Letters Patent Appeals Nos. 23 of 1960, 24 of 1960 and 25 of 1960), which are interconnected filed under clause 10 of the Letters Patent are directed against a judgment of a learned single Judge who has decreed the suits of the plaintiffs to the extent indicated in his judgment in reversal of the decree of dismissal of the Courts below.

(2.) THE necessary pedigree-table is to be found in the judgment of the learned single Judge and need not be set out again. The undisputed facts are that on 20th june 1885 Chuhar Singh who was a descendant of Amrika son of Har Lal sold 167 kanals odd of agricultural land for a sum of Rs. 2,378/- t0 Bhagwan Singh. One hamira, a colleteral of Chuhur Singh, brought a suit for possession by pre-emption in respect of 52 kanals 13 marlas which was decreed on 29th April 1889 on payment of Rs. 671/ -. The remainder of the land measuring 114 kanals 17 marlas was mutated in favour of Bhagwan Singh on 4th May 1890. Hamira sold back the land the possession which he had taken pre-emption to Bhagwan Singh on 20th september 1890. The result was that Bhagwan Singh remained the owner of the entire land which had been sold to him. Chudhar Singh died in 1896. In 1898 jawahar Singh and Bela Singh who were descendents of the line of Bharmian another son declaration that the sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the property was ancestral and the sale was without consideration and necessity. On 29th July 1902 this suit was finally decided by the Punjab Chief Court in appeal the decision being that the sale was good up to the extent of Rupees 1,611/-It was however directed that on the death of Alla Singh adopted son of Chuhar singh and successor-in-interest could take possession of the land on payment of the consideration money to the vendee or his successors-in-interest. On the death of Alla Singh Kishan Singh succeeded him. On the death 18th December 1945 jawahar Singh and Bela singh instituted a suit for possession of the aforesaid land on the allegation that Kishan Singh had died on 15th August 1945 and the line of alla Singh had become extinct. Two more suits were filed by the other collaterals one by Waryam Singh and his three brothers claiming one-hals share in the entire holding and other by Khazan Singh and Jagat Singh who claimed one-fourth share. The trial Court decreed two of the suits but dismissed the suit of Khazan Singh and jagat Singh on the ground that the successors-in-interest of Harmira were estopped from claiming possession. On appeal, the District Judge held on 17th August 1948 that it has not been proved that Kishan Singh has died on 15th August 1945. The suits were ordered to be dismissed in the following words:

(3.) SOON after the decision of the High Court three suits were once again filed by the three sets of the plaintiffs. The first suit was instituted by Waryam Singh and other on 28 October 1952 claiming possession of one-half share in the land in dispute. This was followed by the suit of Jawahar Singh and Bela Singh instituted on 16th December 1952 in respect of one-fourth share. Khazan Singh and Jagat singh instituted on 16th December 1952 in respect of one-fourth share. All these suits were consolidated and tried together. The main plea taken in these suits by the plaintiffs was that Kishan Singh had not been heard of since 15th August 1945 and his death should be presumed under section 108 of the Indian Evidence Act 1872. It was claimed that the suits were within time and it appears that the benefit of section 14 of the India Limitation was raised by the defendants who are successors-in-interest of Bhagwan Singh the original vendee but the main plea however which has assumed importance now was that the suits were barred by time. The trial Court found that Kishan Singh had not been heard of for more than seven years and should therefore be presumed to be civilly dead holding that although after the lapse of 7 years when a person was last heard of the should be presumed to be dead but the date of death had to be proved like any other relevant fact. Since the date of death had not been proved the suit was barred by time. It may be mentioned that the period of limitation prescribed for filing such a suit is three years under the relevant provisions of the Punjab Limitation (Custom) Act, 1920 from the date on which the right to sue accrues or the date on which the declaratory decree is obtained whichever is later. All the three suits were dismissed by the trial Court principally on the ground of the bar of limitation. On appeal the learned District Judge upheld the findings of the trial Court except for one matter. According to him. Harmira having successfully brought a suit for preemption precluded himself and his successors from claiming possession of that property. In view Jagat Singh and Kahzan Singh could not claim any share in the land of Chuhar Singh which was to be divided equally between Waryan Singh and his brothers (one-half share) and Jawahar Singh and Bela Singh (the other half share) if the suits were to be decreed but as he agreed with the conclusion of the trial Court that the suits were barred by time no question of granting any relief to the plaintiffs arose.