IBRAHIM Vs. SHARIFAN

JUDGEMENT

(1.) Ibrahim, plaintiff-appellant is the brother of Smt, Sharifan alias Shanti, defendant-respondant. Their father Akbar and uncle Bhiku were occupancy tenants. After the coming into force of the Occupancy Tenants (Vesting of Proprietary Rights) Act, they became owners of the land in dispute. During the year 1947, when communal disturbances broke out, Akber and other members of the family adopted Hindu names so that they could remain safe during the disturbances. Akbar died in the year 1957 and the mutation of inheritance was sanctioned treating the parties as Hindus in favour of the Plaintiff, the defendant. and their mother Nanhi in equal shares. Smt.. Nanhi died in the year 1986 and the mutation of her inheritance was sanctioned in favour of the plaintiff and the defendant in equal shares. On the death of Bhiku, the uncle of the parties, the mutation of his inheritance was again sanctioned in favour of the plaintiff and the defendant in equal shares. The defendant had started living in village Kambohpura a few years earlier to the institution of the suit. The plaintiff claims himself to be in exclusive possession of the land inherited from Akbar and Bhiku, including the share which was mutated in the name of the defendant. In the year 1969, the defendant threatened to take forcible possession of her share, with the result that the plaintiff filed a suit for declaration claiming himself to be the sole owner of the property measuring 48 Kanals 2 Marlas as mentioned in the plaint.

(2.) The suit was contested by the defendant on various pleas. On the pleadings of the parties, several issues were framed by the trial Court The parties led evidence on those issues The trial Court held that the parties were Muslims end were governed by custom in the matter of succession and that the plaintiff was entitled to the declaration prayed for. On the issue of limitation, the trial Court held that the suit was barred by limitation. Consequently; the suit of the plaintiff was dismissed. Feeling aggrieved from the judgment and decree of the trial Court the plaintiff preferred an appeal which was heard by the learned Senior Subordinate Judge, Karnal, with enhanced appellate powers, who upheld the findings of the trial Court on issues Nos. 1 and 2 but reversed the finding on issue No. 4. Consequently, the appeal was allowed, the judgment and decree of the trial Court was set aside and a declaration as prayed for was granted in favour of the plaintiff. Feeling dissastified from the-judgment and decree of the first appellate Court, the defendant preferred R.S.A. No. 1803 of 1972 in this Court. The learned Single Judge did not agree with the finding of the first appellate Court and held that the suit was barred by limitation. Consequently, the appeal of the defendant was allowed and the suit of the plaintiff was dismissed with costs throughout. Aggrieved from the judgment and decree of the learned Single Judge dated May 21, 1975, the present appeal under clause X of the Letters Patent has been filed by the plaintiff.

(3.) At the outset, it may be observed that though before the learned single Judge a controversy did arise as to which Article out of Arts. 113 and 58 of the Limitation Act, 1963 (hereinafter referred to as the Act) would. apply to the facts of the case in hand, yet before us it was agreed to between the learned counsel for the parties that it was Art. 58 which would govern the present case.