GIAN SINGH Vs. ATMA SINGH

JUDGEMENT

(1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby their suit for possession of the suit land was dismissed.

(2.) THE undisputed facts are that the plaintiff-appellants are the legal heirs of deceased Sunder Singh natural son of Daya Singh. Sunder Singh was adopted by Taba Singh brother of Daya Singh. The defendants are the legal heirs of Daya Singh. Earlier, the legal heirs of Daya Singh filed a suit for declaration to the effect that the defendants-present appellants are not owners of 1/3rd share of the land measuring 51 kanals 5 marlas and the revenue record, recording Sunder Singh as adopted son of Taba Singh as owner and mortgagee is illegal and is liable to be corrected. Issue Nos. 1 and 2 in the said suit were :-

(3.) THE learned trial Court relied upon a judgment reported as Rajindera Singh v. Santa Singh and others, AIR 1973 SC 2537 to hold that the previous litigation between the parties does not arrest the running of the period of limitation during the pendency of the previous suit and that there was no bar for the plaintiffs to approach the Court by way of a suit for recovery of possession during the pendency of the previous litigation and, therefore, the present suit is barred by limitation. It was held that the defendants have become owners of the land in dispute by adverse possession. The appeal against the said judgment was dismissed holding that the injunction obtained by the present defendants in the earlier suit that the present plaintiffs were not to interfere in the possession of the defendants, cannot be extended to mean that the plaintiffs were restrained from claiming the suit land by way of filing a Civil Suit for possession. It was found that on 15.1.1964, the defendants have asserted their adverse possession by bringing Civil Suit, but the plaintiffs never instituted any suit for possession in respect of their share in the disputed land. It was also held that the period of limitation can be excluded only if the filing of the suit is stayed by an injunction order. Since the defendants are in continuous possession since the year 1964 onwards, the present suit filed on 28.8.1977 is clearly barred by limitation.