SORAN GIR Vs. MANJIT SINGH AND OTHERS

JUDGEMENT

(1.) MANJIT Singh Plaintiff Respondent No. 1 filed a suit against Soran Gir Appellant and 3 others, who are now arrayed as Respondents Nos. 2 to 4 in this appeal, seeking a decree for declaration and possession of agricultural land measuring 10 Bighas 3 Biswas He alleged that he was the owner of agricultural land measuring 40 Bighas 10 Biswas situate in village Garhi Poran detailed in Para 1 of the plaint, which he had purchased from Smt. Kori Defendant -Respondent No. 2 vide sale deed dated 26.9.1968 fix. P. 1. Defendant -Respondent No. 2 had filed civil suit No. 516 of 1960 in the Court of the learned Sub Judge, Kaithal, for possession of this land against Defendant Respondent Nos. 3 and 4 and others on the grounds that the said Defendants had by misrepresentation got the said land mutated in their favour and had taken possession of the same falsely alleging that Smt. Kori had died. This suit was decreed on 29 -4 -1960 vide judgment Ex. P. 6 She obtained -possession of the land in execution of the said decree on 9 -1 -1962. Soran Gir, the Defendant -Appellant, instituted a suit against Smt. Kori, Smt. Bakhtawari and Bhagtu Defendants Nos. 2 to 4 for declaration and possession of land measuring 10 Bighas 3 Biswas, being 1/4th share of the entire suit land and the same was decreed ex parte in his favour on 4 -3 -1963. Manjit Singh Plaintiff Respondent No. 1 alleged that this decree had been obtained by Soran Gir by intentionally suppressing the real and true facts and without disclosing the decree dated 22 -4 -1960 in favour of Smt Kori. It may be mentioned that in the judgment dated 29 -4 -1960 Ex P. 6 it was held that Smt. Bakhtawari had no right in the suit land and that its real owner was Smt. Kori and that is why her suit for possession was decreed. Soran Gir claimed to have purchased 1/4th share of the suit land from Smt. Bakhtawari vide sale deed dated 28 -11 -1958 Ex. D 1,/A Since Smt. Bakhtawari had no title in the suit land, she could not passion any such title to Soran Gir. A perusal of the sale deed Ext. D.l/A shows that Smt. Bakhtawari sold away half of the suit land to Bhagtu Defendant Respondent No. 3 and Soran Gir, the Defendant Appellant, in equal shares. Thus, both of them got a common title to the sals deed Exhibit D.l/A. Bhagtu filed a suit for permanent injunction against Smt. Kori wherein he also impleaded Soran Gir as a proforma Defendant He claimed title to 1/4th share of the suit land by virtue of sale -deed Ex; D. 1/A; This suit was dismissed vide judgment, dated 2.12.1965 Ex D. A. An appeal filed by Bhagtu was dismissed vide judgment dated 7.10.1967 Ex. P. 5. On this basis, the Plaintiff Respondent No. 1 contended that vide judgment Exs. DA and P. 5 the title of Bhagtu and Soran Gir had been held to be non -existent. He alleged that the judgment and the decree dated 4.3.1963 Exs P. 3 and P. 4 obtained by the Defendant Appellant were fraudulent and inoperative; had been secured by giving wrong address of Smt. Kori; and Soran Gir had obtained a false report of service of summons of the suit giving rise to the aforesaid judgment and the decree in collusion with the process -server He further alleged that he came to know of the said decree on 1.13.1968 when he went to take possession of the land. He, thus, contended that the possession of the Defendant Appellant was unlawful on the land measuring 13 Biswas and since he had refused to surrender the same, the suit for declaration that the decree dated 4.3.1963 had been obtained by the Defendant Appellant was fraudulent and inoperative and not binding on his rights with consequential relief for possession was filed by him.

(2.) SMT . Kori Defendant -Respondent No. 2 filed her written statement admitting all the averments made in plaint. Smt. Bakhtwari defendant -Respondent No. 3 was proceeded against ex -parte. The Defendant Appellant contested the suit denying the allegations made therein and asserted that the decree dated 4.3.1963 obtained by him was valid, operative and was not liable to be set aside. The suit was alleged to be barred by time, not in proper form and also barred under Section 47, Code of Civil Procedure. It was pleaded that the Plaintiff -Respondent No. 1 was aware of the said decree when it was passed. Bhagtu Defendant -Respondent No. 4 filed his written statement denying the allegations made in the plant. He, however, pleaded that he had been unnecessarily made party to the suit.

(3.) I have heard the learned Counsel for the parties at length. Mr. M. S. Jain the learned Senior Advocate, appearing for the Appellant, contended that the suit instituted on 30.12.1969 was clearly barred by limitation which was governed by Article 59 of the Limitation Act, 1963. The suit could be filed within three years from the date of the knowledge of the decree. The decree was admittedly passed on 4.3.1963. He contended that in the suit filed by Bhagtu Respondent on 14.5.1964 Smt. Kori had been duly served. Bhagtu in his suit had made specific mention of the decree in question in favour of the Appellant. Smt. Kori contested that suit and thus got knowledge of the decree at least on 2.12.1965 when the suit of Bhagtu was dismissed vide judgment Ex. D.A. The suit at the latest could be filed by Smt. Kori questioning the decree in favour of the Appellant upto 1.12.1968. She did not take any step in the matter. Rather it was subsequent thereto that she sold the suit land to Respondent No. 1 on 26.9.1968 vide sale deed Ex. P. 1. Since any suit filed by Smt. Kori after 1.12.1968 would have been barred by time, the Plaintiff Respondent No. 1 who is her successor -in interest, has stepped into her shoes and as such the present suit filed by him is hopelessly barred by time.