BALWAN Vs. ATTAR SINGH

JUDGEMENT

(1.) The defendants No.1 and 2 are in second appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit of the plaintiff/respondent No.1 herein, seeking declaration to the effect that he and proforma defendants No. 3 and 4/respondents No.2 and 3 herein, are owners in equal shares of the suit property as mentioned in the plaint by virtue of being born to Nanti @ Chhotan, has been decreed by learned trial Court vide judgment and decree dtd. 4/2/2012; which has been further upheld by learned lower appellate Court vide judgment and decree dtd. 1/11/2013.

(2.) Brief facts of the case as pleaded in the plaint are that the plaintiff and proforma defendants No.3 and 4 were the owners in equal shares of suit property by virtue of being born to Nanti alias Chhotan. Nanti alias Chhotan was married to one Lachhi Ram son of Sheo Karan. Lachhi Ram had died issueless. After the death of Lachhi Ram, Nanti performed Karewa marriage with his brother Dungar Ram son of Sheo Karan. Out of this Karewa marriage, plaintiff and proforma defendants No. 3 and 4 were born. Later Dungar Ram had performed second marriage with one Darkan out of which wedlock, appellants/defendants No. 1 and 2 were born. Vide mutation No. 441 dtd. 18/5/1985, the suit land had been transferred in the name of all parties to the suit; whereas it should have been transferred in the name of children of Nanti and Dungar i.e. the plaintiff and proforma defendants No. 3 and 4. Vide the impugned judgment and decree dtd. 4/2/2012, suit of the plaintiff was decreed with costs by the learned trial Court. The appeal filed by defendants No.1 and 2 was dismissed with costs by the learned lower appellate Court vide judgment and decree dtd. 1/11/2013. Hence, the present second appeal has been filed by defendants No.1 and 2.

(3.) It is submitted by learned counsel for the appellants that the suit of the plaintiff was time barred as the mutation was sanctioned on 18/5/1985; whereas the Civil Suit was filed on 14/10/2003. It is contended that as per Sec. 58 of the Limitation Act, limitation for challenging the mutation is 3 years. As such, suit of the plaintiff was barred by limitation. However, this fact has not been correctly considered in the right perspective by the learned Courts below. It is argued by learned counsel for the appellants that the suit of the plaintiff was not merely for inheritance but challenge was also laid to the mutation. Moreover, the plaintiff has admitted in his cross-examination that defendants No. 1 and 2 are in possession of the suit property. It is accordingly prayed that the present appeal be allowed; and the impugned judgments and decrees of the learned Courts below be set aside and the suit of the plaintiff be dismissed with costs in the interest of justice.