MULTAN SINGH Vs. SURAJ SINGH

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a judgment and decree of the learned Chief Justice. The suit instituted by the plaintiffs -respondents for possession of 2 Kanals and. 4 Marlas of land specified in the plaint situate in village Thalore, Tehsil Samba, was dismissed by the Munsiff, Samba, on the ground that it was barred by limitation. On appeal the Senior Subordinate Judge, Jammu, affirmed the judgment and decree of the trial Court. In second appeal the learned Chief Justice has reversed the judgments and decrees of the two courts below and has held the suit to toe within time.

(2.) WE have heard the learned counsel for the parties. The only point that falls for determination in this appeal is when possession of the land in dispute by the defendants appellants, who were co -sharers of the plaintiffs respondents, became adverse to the latter. From the facts stated by the learned counsel for the appellants before us and which are recited in the instrument of partition it appears that mutation relating to this partition was sanctioned by the Tehsildar on 29th Jeth 1989 but the partition proceedings were not completed till 4 -1 - -1937 corresponding to 21st Poh, 1993 when the revision application in those proceedings was rejected by the late His Highness, the then Ruler. In the instrument of partition, however, it is stated that partition is to take effect from Rabi 1989. The contention of the learned counsel for the defendants appellants is that the starting point of limitation would be Rabi 1989 from which, under the instrument of partition, partition was to take effect. In the circumstances of the case it would be strange if limitation were to start from & date when partition proceedings were still pending. It is obvious that the final order in the partition proceedings was passed by the late His Highness on 4 -1 -1937 corresponding to 21st poh, 1993. Even if this date were considered to be the starting point for limitation the suit is within time having been instituted on 15th Poh, 2005.It is, therefore, clear that the date given in the Instrument of partition from which partition was to take effect was absolutely arbitrary. Even then the contention of the learned counsel for the appellants is that this date could not now be questioned as nobody had got this mistake in the instrument of partition rectified by initiating suitable proceedings in respect of it. There would have been a considerable force in this argument if under the law in force in the State the starting point of limitation had been this date as it appears to have been in the Punjab. A comparative study of the relevant provisions of the Land Revenue Acts as in force in the Punjab and in the State, namely Ss. 121 and 122, Punjab Land Revenue Act, 1887 and Ss. 116 and 117, Jammu and Kashmir Land Revenue Act, 1996, would show that, while the language of S. 121, Punjab Land Revenue Act and S. 116, Jammu and Kashmir Land Revenue Act is exactly the same, there is a good deal of difference between the provisions contained in S. 122 of Punjab Act and S. 117 of the State Act. Under S. 122,, Punjab Lands Revenue Act if an owner or tenant to whom any land or portion of a tenancy is allotted in proceedings for partition does not get possession, he can apply to a Revenue Officer for getting possession within three years from the date recorded in the instrument of partition as the date from which partition is to take effect under S. 121. But in the State under S. 117 such an application is to be made within three years from the date on which the instrument of partition is prepared under S. 116. Here the date given to the instrument of partition on which partition is to take effect does not give the starting point of limitation. Further while there is no explicit provision in the Punjab Act regarding the right of a person to institute a regular civil suit for recovery of possession after the expiry of three years - the period of limitation fixed under S. 122 - S. 117 of the State Act clearly recognizes this right and says "If any application be made after the expiry of three years the applicant shall be referred to the civil court to seek his relief by a suit for possession." Under these circumstances it would appear that under the Punjab Act the date given in the instrument of partition on which the partition is to take effect is material and furnishes the starting point of limitation for application under S. 122. By analogy it appears this date is also taken as giving the starting point for limitation of a regular civil suit. In this connection - Hadayat Khan v. Shahamand 1924 Lah 155 `AIR Vll `A may be referred to. In this case the instrument of partition was drawn up on 1 -12 -1905. The instrument, however, provided that the land should remain joint up to Kharif 1905 which would roughly correspond to 15th October to 15â š ¬FT November, 1905. It was held in this case that the starting point of limitation would be Kharif 1905. But on this point this case cannot afford any guidance in relation to the case before us. Here, as we have already indicated the starting point of limitation has been provided in the provisions of S. 117 itself and it is the date on which the instrument of partition is drawn up. But it appears to me that some observations in this case support the conclusion at which we have arrived that adverse possession in any case cannot start till the partition proceedings have been completed and this cannot happen till all the disputes before the Revenue Officers in this connection come to a conclusion. It has already been indicated that the final order in this case was passed by the late His Highness on 4 -1 -1937, corresponding to 21st Poh, 1993 and, therefore, the date given in the instrument of partition is absolutely wrong and arbitrary. But it is not necessary to stress this point inasmuch as under the law in the state it is the date of the preparation of the instrument of partition from which the period of limitation is to start.

(3.) AFTER careful consideration of the material placed on the record we agree with the learned Judge in Chambers that the starting point of limitation in this case is the date when the instrument of partition was prepared, i.e. 11th Sawan 1994. There is, therefore, no substance in this appeal and it is dismissed. No order as to costs.