GURBACHAN SINGH Vs. BALWANT SINGH

JUDGEMENT

(1.) In exercise of a decree for pre-emption, Gurcharan Singh, petitioner, was delivered actual possession of 135 kanals of land and symbolical possession of 62 kanals 13 marlas on June 13, 1963. Thereafter, the judgment-debtors filed a suit for declaration that Gurbachan Singh was entitled only to 135 kanals of land and they were the owners of the remaining land including 62 kanals 17 marlas mentioned above. The suit was decreed by the trial Court on March 19, 1968, and its decree was confirmed, on appeal, by the Appellate Court on May 12, 1969.

(2.) It appears that Gurbachan Singh instituted the partition proceedings and claimed separate possession of 135 kanals as well as 62 kanals 13 marlas of land. Thereupon, the heirs of Ladha Singh, judgment-debtor, who sought the declaration, filed the present application for restoration of the possession of 62 kanals 13 marlas of land of which the symbolical possession was delivered. The executing Court has found that the judgment-debtors were all through in its actual possession. The application, therefore, seems to be wholly misconceived.

(3.) The petitioner, however, objected to the maintainability of the application on the ground of limitation. According to the learned counsel for the petitioner, the limitation in such applications is three years from the date of the delivery of the possession. As the possession had been delivered on June 13, 1963 and the application filed on July 22, 1973, the same was barred by time. The learned counsel for the respondents, on the other hand, urged that the limitation would start from the delivery of the actual possession. I am, however, unable to appreciate this contention. The actual possession of the land was never delivered by the executing Court, and it was only symbolical possession which was delivered. For the purpose of restitution, if at all, there was necessity to move the application, the same could be done within 3 years from the date of the delivery of the symbolical possession.