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Gokal Vs. Haria and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H414
AppellantGokal
RespondentHaria and ors.
Excerpt:
.....as a result of the defendants' failure to bring a suit for joint possession of their share in the suit property within the time allowed by that act their title should be deemed to have become extinguished. the property in dispute having been found to be ancestral in the previous litigation and the sale having been contested on the ground of its being opposed to custom it is obvious that the case falls within the purview of punjab act i [l] of 1920. 7. coming now to the effect of the failure of the defendants to bring a suit for possession within the time allowed by that act, section 28, limitation act does not in terms apply to suits for which a period of limitation is not provided by the schedule in the limitation act and which are provided for by local or special acts. the section..........in-junction restraining the defendants from inter-fering with the plaintiff's possession of the suit property and from preventing him from constructing houses thereon. the allegations of the plaintiff were that he had been in continuous possession of the suit property from the date of the sale in his favour, that moti, haku and bisakhi or their legal representatives had lost their right to the property in dispute by reason of not having sued for possession of their share within the time allowed by law, and that when the house which originally stood on the site in dispute fell down about two months ago and ;he plaintiff began: to reconstruet the house, the defendants prevented him from doing so. the suit was resisted by defendants 1, 2, 3, 4, 5, 7, 3 and 10 on the pleas that the house.....
Judgment:

Achhru Ram, J.

1. This second appeal has arisen in the following circumstances. One Mt. Sobhan widow of Sidhu was the owner of the property in dispute which consists of a vacant site and a compound, at one time there was a house constructed on this property. In the year 1906 the plaintiff who was one of the collaterals of Sidhu purchased the aforesaid house from Mt. Sobhan with the consent of his own father Gurmukh, who was then alive and Hira, another collateral of Sidhu, who seems to have died without leaving any heirs. Moti, Haku and Bisakhi, three brothers of Gurmukh, father of the plaintiff, brought a suit for the usual declaration which was decreed in their favour on 7th February 1908. A declaratory decree was granted by the Court in favour of the plaintiffs to the effect that the sale by Mt. Sobhan in favour of Haria would not affect their reversionary rights after the vendor's death and that they would be entitled to recover possession of their share in the property after the widow's death without any payment. Mt. Sobhan died on 24th August 1922. The aforesaid Moti, Haku and Bisakhi did not bring any suit for possession of their Bhare of the property sold by the aforesaid Mt. Sobhan in favour of Haria within the time allowed by Punjab Act I [l] of 1920. On 2nd April 1946 Haria brought the suit which has given rise to the present second appeal impleading all the descendants of Dola, his own grandfather, who are the nearest collaterals of Sidhu at the present moment. Nihala, Labhu, Polu, Kirpu, Ramun and Raman, sons of Moti, were impleaded as defendant 3 to 8, Moti having died before the institution of the suit.

2. Similarly Bisakhi having died his sons Lalu and Gokal were impleaded as defendants 1 and 2. Haku appears to have died without leaving any child or any widow. The relief claimed in the suit was a perpetual in-junction restraining the defendants from inter-fering with the plaintiff's possession of the suit property and from preventing him from constructing houses thereon. The allegations of the plaintiff were that he had been in continuous possession of the suit property from the date of the sale in his favour, that Moti, Haku and Bisakhi or their legal representatives had lost their right to the property in dispute by reason of not having sued for possession of their share within the time allowed by law, and that when the house which originally stood on the site in dispute fell down about two months ago and ;he plaintiff began: to reconstruet the house, the defendants prevented him from doing so. The suit was resisted by defendants 1, 2, 3, 4, 5, 7, 3 and 10 on the pleas that the house had fallen Sown during the lifetime of Mt. Sobhan and the property in dispute had become a vacant site, that when they were about to bring a suit for possession after the death of the aforesaid Mt. Sobhan they were told by the plaintiff that it was unnecessary to do so because they had already got a decree and the property was only a vacant site which would be deemed to be in the joint possession of all the reversioners of Mt. Sobhan's husband. It was further alleged that they were assured by the plaintiff that they could get the site partitioned whenever they liked. It was also averred that the contesting defendants had been in joint possession of the suit site all along and, therefore, had not lost their right therein. On the pleadings of the parties the learned trial Judge framed the following issues:

(1) Whether the plaintiff alone is entitled to the site in dispute? (2) What is the effect of the previous litigation on this suit 1 (3) Whether the plaintiff alone is in possession of the site in dispute and not the defendants 1 (4) Relief.

3. The learned trial Judge decided all the issues in the plaintiff's favour and decreed his claim. On appeal the learned Senior Sub-Judge affirmed the decision of the learned trial Judge Feeling: aggrieved from the decree of the learned Senior Sub-Judge, Gokal alone, out of the contesting defendants, has come up in second appeal to this Court.

4. After hearing the learned Counsel for the appellant I am of the opinion that this appeal is wholly devoid of force. The two Courts below were not satisfied that the contesting defendants had succeeded in proving that they had got into possession of the property in suit after the death of Mt. Sobhan or that they had ever been in joint possession thereof. No attempt was made by the learned Counsel for the appellant to show that this view of the Courts below was wrong or that there was material on the record on which it could be held that the contesting defendants had been in joint possession of the suit property.

5. The only question that is left for determination, in the circumstances, is whether Punjab Act I [1]. of 1920 applies and whether as a result of the defendants' failure to bring a suit for joint possession of their share in the suit property within the time allowed by that Act their title should be deemed to have become extinguished.

6. As regards the applicability of Punjab Act I [1] of 1920 it must be observed that the defendants never pleaded that they were not governed by agricultural custom. A reference to the judgment in the declaratory suit of 1907 leaves no doubt that the said suit was brought on the basis of custom. One of the allegations on which the suit was founded was that the property sold was ancestral qua the plaintiffs. Tinder Hindu law no question of the ancestral nature of the property would have arisen. It is true that under custom also powers of alienation of a widow are restricted even in relation to non-ancestral estate of her husband, but the judgment in the declaratory suit shows that Sidhu had left daughters and one of the points in controversy between the parties was whether any part of the sale consideration had been spent on the muklawa ceremony of those daughters. Inasmuch as collaterals would not be the next reversioners regarding non-ancestral property in the presence of daughters it became necessary for the plaintiffs in the declaratory suit to allege that the property was ancestral and it also became necessary for the Court to give a decision on that question. Had the suit been one based on Hindu law the existence of the daughters would probably have been a complete answer to the suit because under Hindu law daughters are preferential heirs even with regard to ancestral property. The property in dispute having been found to be ancestral in the previous litigation and the sale having been contested on the ground of its being opposed to custom it is obvious that the case falls within the purview of Punjab Act I [l] of 1920.

7. Coming now to the effect of the failure of the defendants to bring a suit for possession within the time allowed by that Act, Section 28, Limitation Act does not in terms apply to suits for which a period of limitation is not provided by the schedule in the Limitation Act and which are provided for by local or special Acts. How-ever, it has been repeatedly held that the principles of the aforesaid section are applicable also to suits for possession for which a period of limitation is provided by a local or a special Act. The section gives effect to a well-known principle of the English common law according to which in case of immovable property if the suit for possession is not brought within the period of limitation it is not merely the remedy that is lost to the plaintiff but his title in the property is also extinguished and the opposite party acquires a valid title to such property. This principle is clearly applicable to the present case.

8. It was contended by the learned Counsel for the appellant that the property in dispute being a vacant site and the plaintiff himself being entitled to a share in that property after the death of Mt. Sobhan independently alto, gether of the sale in his favour, it was not necessary for the defendants to bring any suit for possession and that the defendants having become co-sharers after the death of Mt. Sobhan the possession of the plaintiff even though exclusive must be deemed to be the constructive possession of the defendants in respect of their own shares. This contention of the learned Counsel is, however, based on a fallacy. It is well settled that till succession opens out no reversioner can claim any right to or interest in the property in the possession of the limited owner. Till succession opens out the reversionary interest is merely in the nature of spas successions and it cannot be postulated with regard to any particular person whether at the time the estate falls into possession he would be entitled to the property. When the presumptive reversioner brings a suit for a declaration that an alienation by a limited owner should not affect his reversionary rights at the time of the succession opening out and the suit is decreed the only effect of the decree is to declare the aliention to be invalid except for the life of the alienor. The declaratory decree does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. The title still remains in the alienee. The effect of the various provisions by Punjab Act I [1]. of 1920 read together is that the alienee's title subsists even after the death of the alienor unless and until the reversioner takes steps within limitation to displace him. On the death of Mt. Sobhan the defendants did not become co-sharers in the suit property as a result of the declaratory decree obtained by them and in any case the possession of the plaintiff who claimed to hold by virtue of the title created in his favour by the sale could not be considered to be constructive possession of the said defendants. Not having sued for joint possession of their share within the time allowed by law their right in the property became extinguished and the plaintiff became the absolute and exclusive owner of the whole of the suit property. In the circumstances, I must hold that the suit has been rightly decreed by the Courts below and dismiss this appeal with costs.


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