TEK SINGH Vs. SH.KESAR SINGH

JUDGEMENT

(1.) Plaintiff one Guddi instituted, a, civil suit bearing No. 170/95, before the learned trial Judge, seeking therein, hence rendition, of, a declaratory relief, qua of hers, being joint owner in possession, to, the extent of l/5th share, alongwith the defendants, vis-a-vis, suit khasra Nos, and also strived, for rendition, of, a declaratory relief, for setting aside mutation No. 458, recorded, on, 23/11/1962, on anvil, qua it being recorded, behind her back, and also against the provisions of law. The afore civil suit, stood dismissed, by the learned trial Judge, and, there against civil appeal bearing No. 97 of 2001, stood instituted, before the learned First appellate Court, and the afore civil appeal, also stood dismissed, and, the trial Court's verdict, hence dismissing the plaintiffs' suit, rather stood affirmed, by the learned First appellate Court. The plaintiffs are aggrieved by the declining of the afore relief, and, through RSA No. 95 of 2006, cast a challenge thereon

(2.) When the instant appeal came up, for admission, before this Court, on 15/6/2009, this Court admitted the instant RSA on, the hereinafter extracted substantial question(s) of law:-

(3.) The plaintiff Guddi, through her LRs, sought rendition, of, a decree for setting aside, mutation No.458, attested, on 23/11/1962, and made vis-a-vis, the suit khasra Nos, and, qua the defendants (i) and, where through, she purportedly relinquished, her share in the suit property, yet, the afore relief, rather stood declined to her, on anvil, qua hers failing to appear, as a witness, (ii) and also upon anvil qua her challenge, to, the afore mutation, being made belatedly, and hence, the, casting, of, an onslaught thereon, being time barred. However, both the afore meted reasons, rather by the learned first appellate Court, to, there through(s) hence decline, the, espoused relief, vis-a-vis the plaintiff, appertaining, for setting aside mutation No. 458 attested, on 23/11/1962, is perse erroneous, and, is founded, upon, an erroneous interpretation of law, (iii) inasmuch, as any drawing, of, an adverse inference, against the plaintiff, rather sparked, by hers failing to step into the witness box, being insufficient, to, decline the espoused relief, to, her, as all the averments, borne in the plaint, were proven through the testification, of her son, who, appeared as PW-1, and who was evidently well-acquainted, with, the facts, as, appertaining, to, the lis, (iv) there along with furthermore, the afore secondary reason(s), as assigned by the learned first appellate Court, for declining the espoused relief, vis-a-vis, the plaintiffs, is, also perse flimsy and fallacious, (v) given, the, afore recorded mutation, being, for reasons assigned hereafter, rather becoming founded hence beyond the domain, of, law, as, appertaining therewith, and, also concomitantly, it being void ab-initio, (vi) thereupon(s), vis-a-vis, any ab-initiovoid- order of mutation, there being no prescribed period, of, limitation, rather the afore ab-initio void order of mutation, conferring a continuing cause of action, vis-avis, the aggrieved therefrom, with the further corollary, qua the apt commencing reckoneable period of limitation, becoming actionable, from, the commission of overt act(s), upon, the suit property, and, also the apt cause of action, becoming activated, upon, the rights of the plaintiff, in the suit property, being adversely affected (vii) and when, from, the afore reckonable commencing period of limitation, the suit is filed, within the apt prescribed period, of, limitation, and, also with the plaintiff also claiming the rendition, of, a decree of joint possession, (viii) thereupon, the plaintiffs' suit, was rather well constituted, and, was also within limitation, and, the declining to the plaintiff, the, relief of setting aside, the, mutation No. 458, is, un-merit worthy, and, warrants interference.