BAKHTAWAR SINGH Vs. SADA KAUR

JUDGEMENT

(1.) This is plaintiffs' second appeal whose suit for possession has been dismissed as barred by time by both the Courts below.

(2.) Gulab Singh had five sons, namely, Sampuran Singh, Jit Singh, Dalip Singh, Chand Singh and Bakhtawar Singh. Sada Kaur, defendant, was married to Dalip Singh in the year 1927. He died in the year 1932. A few months thereafter Sada Kaur contracted karewa marriage with Chand Singh, the brother of her deceased husband Dalip Singh. Chand Singh, defendant, and his brother Sampuran Singh had partitioned the estate left by Dalip Singh in four shares and occupied the same as owners. The suit land was ancestral. The parties were Dhaliwal Jats dependent upon agriculture. According to the custom prevalent, a widow who remarried after the death of her husband, forfeited her rights in the estate of her deceased husband and the reversioners were entitled to inherit the same. Thus, Sada Kaur, defendant, after her remarriage with Chand Singh, lost her rights in the estate of her deceased husband Dalip Singh. Accordingly, the property was inherited equally by all the four brothers. Even Chand Singh, who had married Sada Kaur by karewa had also agreed to the said partition. Dalip Singh had died leaving behind no son or daughter whereas Sampuran Singh, brother of the plaintiffs, had died leaving behind two daughters, namely, Kartar Kaur and Jas Kaur. Both of them sold the estate inherited by them from their father Sampuran Singh to the plaintiffs and Chand Singh, defendant. Thus, the plaintiffs and Chand Singh, defendant, came into possession of the entire estate of their father in equal shares. In November, 1961, Sada Kaur, defendant, had denied the title of the plaintiffs. Her name existed in the revenue record as the widow of Dalip Singh. This necessitated the filing of a declaratory suit by the plaintiffs on January 19, 1962, to the effect that they were the owners in possession of two-thirds share in the estate of Dalip Singh, deceased. In the written statement, the defendants pleaded that Sada Kaur was in possession of the land and that her title thereto had been perfected by adverse possession. The trial Court found that the plaintiffs were in actual possession of the land and that Sada Kaur was not in adverse possession thereof, as alleged. However, the said suit was dismissed by the trial Court on June 13, 1962, on the ground that the widow did not forfeit her rights on remarriage with her deceased husband's brother. In the appeal filed by the plaintiffs, the learned District Judge allowed the appeal on August 7, 1964 and, thus, decreed the plaintiff's suit. In the second appeal in this Court by Sada Kaur, the finding of the trial Court that the plaintiffs were in possession of the land was not disputed. The only ground debated in the said appeal was whether a widow forfeited her rights after karewa marriage or not. During the year 1961-62, the consolidation of holdings took place in the village. Since the name of Sada Kaur existed in the revenue record as the widow of Dalip Singh, the consolidation authorities allotted her a separate kurra and she took possession thereof in March, 1963. Thereon, the plaintiffs filed a suit on 9/10th November, 1954, for possession. However, the proceedings in the said suit were stayed under S.10 of Civil P.C., in view of the pendency of the regular second appeal filed by Sada Kaur in this Court arising out of the suit for the grant of declaration. Ultimately, the second appeal filed by Sada Kaur was dismissed by the Full Bench of this Court on November 3, 1969 (reported in AIR 1970 Punjab 289). The judgement of this Full Bench of this Court was also upheld by the Supreme Court in the year 1980 (reported in AIR 1980 SC 2138). In the Supreme Court, an application for stay of the proceedings in the suit instituted in the year 1964 (Suit No. 661 of 1964) was also filed and the proceedings therein were thus stayed by the Supreme Court. For the reasons best known to the plaintiffs, they moved an application for withdrawal of the said suit with permission to file a fresh suit on the same cause of action. The said application was not contested by the defendants. Consequently, the trial Court allowed the suit to be withdrawn on May 20, 1971, vide order copy, Exh. P-11. After the dismissal of the appeal by the Supreme Court, Sada Kaur, defendant, was approached by the plaintiffs for the, restoration of the possession of the land on October 1, 1980, but she refused to do so; hence the present suit for possession of the suit land on October 27, 1980. In the written statement filed on behalf of Sada Kaur, defendant, inter alia objection was raised that the suit was not within time. However. it was admitted that she was married to Dalip Singh and after his death, she had remarried Chand Singh. She denied that she had forfeited her rights in the estate of her deceased husband Dalip Singh after her remarriage with Chand Singh. She also pleaded that consolidation of holdings had taken place in the village in the year 1961 and that she was in possession of the suit land as the owner since the year 1963. In the trial Court all the issues except the issue : whether the suit of the plaintiffs is not within limitation, were decided in favour of the plaintiffs because of the earlier litigation between the parties, but they were non-suited as under the said issue, it was held that their suit was barred by time. It was also held that Sada Kaur, defendant, had become the owner of the suit land by way of adverse possession. Consequently, the plaintiffs' suit was dismissed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court on the question of limitation and, thus, maintained the decree dismissing the plaintiffs' suit. Dissatisfied with the same, they have filed this second appeal in this Court.

(3.) The only question involved in this appeal is whether the suit filed by the plaintiffs on October 27, 1980, was within limitation or not ?