R.S. Narula, J.
1. Nothing except the question of limitation has been argued by the parties in this regular second appeal against the judgment and decree of the Court of the District Judge, Jullundur, dated October 8, 1960, whereby the decree of the trial Court was reversed and the suit of Darshan Singh appellant for possession of the land and house in dispute was dismissed as barred by time. The real contest is between the son and the father (Darshan Singh appellant and Arjan Singh respondent No. 1 respectively), the Union of India having been impleaded only as a pro forma party.
2. The following pedigree table will show the relationship between the parties:--
Nihal Singh Mahtab Singh
Jiwan Singh Adopted son
(testator) Arjun Singh
| son of Jiwan
Arjun Singh Singh (respondent
(respondent No. 5) No. 1).
Jiwan Singh owned some self-acquired property in village Maksudpur, district Jullundur, as well as some land and a house in Chak No. 180/ E. B. in tahsil Vihari district Multan. Jiwan Singh's son Arjan Singh respondent No. 1 had been adopted away by Jiwan Singh's paternal uncle Mehtab Singh. On January 11, 1945, Jiwan Singh executed a registered will in favour of Darshan Singh appellant whereby he bequeathed his entire movable and immovable property to his grandson Darshan Singh. Jiwan Singh died in February, 1945. There is some evidence of the plaintiff-appellant having come into possession of the tahsil Vihari land after the death of Jiwan Singh. The fact, however, remains that Arjan Singh respondent got Vihari land mutated in his name. After the partition of the country the parties migrated to their village Maksudpur in district Jullundur. As the name of Arjan Singh respondent occurred in the revenue records as the owner of the Vihari Land pursuant to the mutation in his favour, the agricultural land and the house in dispute situate in village Sondh, Tahsil Nawanshahr, were allotted by the Government in favour of the contesting respondent. Consequent on the said allotment possession of the disputed land and house in village Sondh was also given by the Government and obtained by Arjan Singh respondent some time after August 15, 1947.
3. On May 2, 1959, Darshan Singh filed the present suit in the Court of the Senior Subordinate Judge, Jullundur, claiming a decree for possession of the land and house in dispute against Arjan Singh. Union of India was impleaded as a pro forma defendant to the suit on the ground that the allotment of acquired evacuee land and house in village Sondh had been made in favour of the contesting respondent by the Central Government. The plaintiff claimed that he had become absolute owner of the Vihari property on the death of Jiwan Singh in pursuance of his will, and that though Arjan Singh had represented to the plaintiff that the allotments had been obtained in the name of the plaintiff he had fraudulently got the pucca sanads in his own favour. As the contesting defendant had obtained possession of the disputed land and house in village Sondh in lieu of Vihari property which belonged absolutely to the plaintiff, it was claimed that Arjan Singh had no right to retain possession of the same. The suit was contested by both the defendants. The Union of India pleaded in its written statement that the property in dispute had been allotted to Arjan Singh defendant as he was shown to be the owner of the Vihari land in the revenue records received from Pakistan and as the plaintiff was not shown to be the owner of the Pakistan property in revenue records. The contesting defendant raised various pleas in his written statement, some of which relating to Court-fees etc., were disposed of by a preliminary order and to which the present dispute does not extend. The contesting defendant denied the execution of any valid will as well as the alleged fraud in obtaining the allotment of the disputed property in his name and further pleaded that the suit was barred by time and the plaintiff was estopned by his conduct from making his claim in suit. The plaintiff had further claimed that as the defendant himself had produced the will before the Revenue Authorities in Pakistan he was estopped from objecting to the validity of the will by his act and conduct. From the pleadings of the parties, the trial Court framed the following issues on merites:--
'1. Whether Jiwan Singh deceased made a valid will of his property in favour of the plaintiff on 11th January, 1945?
2. Whether defendant No. 2 got allotment of the land in suit by fraud? If so, to what effect?
3. Whether suit is within time?
4. Whether the plaintiff is estopped from filing this suit?
5. Whether defendant No. 2 is estopped from objecting to the validity of the will by his act and conduct?
4. By his judgment, dated May 30, 1960, Shri Kuljit Singh Bhalla, Subordinate Judge 1st Class, Jullundur, decreed the suit of the plaintiff for possession of the entire property in dispute on the finding that Jiwan Singh had executed the will in dispute in favour ot the plaintiff on January 11, 1945, that the suit was within time, that the plaintiff was not estopped from filing the suit, that the defendant was estopped from objecting to the validity of the will, but no fraud on defendant No. 2 had been proved. For giving his finding on issue No. 3 relating to limitation the learned Subordinate Judge observed that the property in dispute had been given by the Government in lieu of the property originally belonging to Jiwan Singh which had been left behind in Pakistan, to which property plaintiff's title stood established, and unless the defendant had proved adverse possession over the said property for more than twelve years, he was not entitled to oust the plaintiff who was a rightful owner thereof, The learned Subordinate Judge relied on the admission of Arjan Singh in his statement as D. W. 2 to the effect that he (Arjan Singh defendant) had been in possession of the property since 1947, and held that even if it could be assumed that the defendant could have come into possession of the property in dispute on the 15th August, 1947, which was the earliest possible date, and even if the possession of Arjan Singh could be deemed to be adverse since that very day, it had not ripened into ownership as the present suit was filed on May 4, 1959 (in fact it was filed on May 2, 1959), i.e., within a period of 12 years. The learned Subordinate Judge repelled the contention of the defendant to the effect that the suit should have been filed within twelve years of the death of Jiwan Singh, i. e., with twelve years from February, 1945. As the defendant had admitted, though half-heartedly, that the plaintiff himself was cultivating Jiwan Singh's land in Pakistan, it was held that when the plaintiff was in possession of the land in dispute in Pakistan, he need not nave bothered about entries in the revenue records and that the plaintiff's right was actually jeopardised only when the allotment was made in favour of defendant No. 2 in village Sondh and he was thereby dispossessed of the land.
5. In the first appeal fifed against the decree of the trial Court by Arjan Singh defendant, the learned District Judge reversed the finding of the trial Court on issue No. 5 and held that by merely producing the disputed will before the Revenue Authorities, defendant No. 2 coud not be said to have been estopped from objecting to the validity of the will. The finding of the first appellate Court on that issue has not been seriously questioned before us. On the question of limitation, the learned District Judge held that inasmuch as the plaintiff had nowhere alleged in the plaint that he ever had taken possession of the land left by Jiwan Singh deceased in Multan district on the death of Jiwan Singh, the case of the plaintiff is not that of possession and subsequent dispossession but is merely a suit for possession of the land as heir of Jiwan Singh deceased on the basis of the will. On that basis it was held that the suft of the plaintiff did not fall under Article 142 but under Article 140 of the Limitation Act (9 of 1908). It was further observed that the claim of the plaintiff under Section 18 of the Limitation Act to exclude the period during which the alleged fraud did not come to his notice could not be considered in view of the finding that no fraud had been proved. The learned District Judge held that as a suit under Article 140 has to be filed within twelve years from the date on which the estate falls into possession and as the estate fell into possession on the death of Jiwan Singh on February 8, 1945, the present suit filed on May 2, 1959, i. e. more than twelve years after the death of Jiwan Singh, was barred by time.
6. Shri Amrit Lal Bahri, the learned counsel for the appellant, submitted on the authority of a Division Bench judgment of this Court in Harnarn Singh v. Kanshi Ram, AIR 1958 Punj 187, that in order to find out as to what is the real character of a suit, which would determine the Article of the Limitation Act applicable thereto, one has to look not merely to the form of the relief claimed, but to all the facts and circumstances admitted or proved in the case. The question in each case is what in substance the plaintiff claims and what are the actual facts on which the claim is based. Reference was also made in the same context to the judgment of Pandit, J., in Ram Murti v. Puran Singh, 1963-65 Pun LR 297 = (AIR 1963 Punj 393), wherein it was held that it is not necessary that the plaintiff should allege in so many words that he was in possession and had been dispossessed and that this can be inferred from his pleadings and allegations read as a whole. Reliance was also placed on behalf of the appellant on the Division Bench judgment of the Patna High Court in Badri Khatik v. Narain Singh, AIR 1946 Pat 185. In that case the contest was also between Articles 142 and 144 of the Limitation Act. It was held by the Patna High Court in Badri Khatik's case, AIR 1946 Pat 185 (supra), that it is not the form of allegations of the plaintiff which determines the nature of the suit, but it is the substance and the actual facts found by the Court which decide whether the suit is one which comes within the purview of one or other of those Articles. It was further held that so far as Article 142 is concerned, it is not necessary that the suit should be one in which the plaintiff should allege that he has been in possession and dispossessed.
7. Counsel then referred to the general rule or possession being presumed to follow title in the absence of evidence to the contrary and to the evidence of P. Ws. 3, 4 and 7, and the admission of Arjan Singh defendant in the witness-box. Pritam Singh P. W. 3 stated in the witness-box that Darshan Singh had been cultivating the land as an owner till disputes between him and Arjan Singh arose when Arjan Singh made a will in respect of half of the land in favour of Avtar Singh. P. W. 4 Beant Singh was a Lambardar of Chak No. 180 in tahsil Vihari. He unequivocally stated in his examina-tion-in-chief that after the death of Jiwan Singh, it was the plaintiff who was cultivating the Pakistan land in question as owner. Jiwan Singh had given the entire land to him, The testimony of P. W. 4 to the above effect was not shaken in cross-examination. The plaintiff himself as P. W- 7 deposed that he had been cultivating the Pakistan land and that in fact Arjan Singh responednt was living in Maksud-pur before the partition of the country. ffe categorically stated that after the death of Jiwan Singh, the plaintiff himself continued to be in possession of the property in dispute in Pakistan and that inasmuch as the property in dispute had been allotted in lieu of the said Pakistan property, the plaintiff also cultivated the same when he was living jointly with the contesting defendant. No particular cross-examination was directed against this part of the plaintiff's testimony. When the defendant himself entered the witness-box as D. W. 2 he stated in his examination-in-chief itself that the plaintiff might have been cultivating Jiwan Singh's land in Pakistan and that he did not know about it. At the minimum this amounted to not denying the categorical assertion of the plaintiff and of bis witness P. W. 4 about the plaintiff having been in cultivating possession of the Pakistan land after the death of Jiwan Singh. He no doubt stated that 'the plaintiff never got into possession', but the said sentence followed an averment to the effect 'since f947 possession is mine'. The allegation of the plaintiff never having been in possession, therefore, clearly related to the land over which the contesting defendant claimed possession since 1947. He could say this only about the property in village Sondh and not about the original land in Pakisan. ft is in this state of evidence that the appellant wants us to hold that the plaintiff had clearly proved his possession over the Pakistan property after the death of Jiwan Singh and in the absence of any allegation or proof of his having been dispossessed of the same at any time before the partition of the country, the plaintiff should be presumed to have continued in possession of the said lands till August 15, 1947. It was then argued that even if the statement of the defendant about his having got the Sondh property in 1947, and having continued in exclusive possession thereof since then, be taken on its face value, it could only amount to constructive dispossession of the plaintiff with effect from August 15, 1947, and mat the instant suit Having been filed in May, 1959, would be well within time on that basis. Mr. P. S. Mann, the learned counsel for the contesting respondent, submitted on the authority of the judgment of Agha Haidar, J., in Kaur Sain v. Gulab, AIR 1935 Lah 507, and argued that in all cases in which the applicability of Article 142 or Article 144 is in controversy, it is necessary to sorutinise the pleadings of the plaintiff and to ascertain exactly the allegations on which the plaintiff has come into Court and the reliefs sought by him. In that case it was further held that sometimes the pleas raised in defence by the defendant are also relevant to the inquiry. Counsel then referred to the Full Bench judgment of the Lahore High Court in Behari Lal v. Narain Das, AIR 1935 Lah 475 (FB), wherein it was held that in a suit tor possession when tha plaintiff pleads possession and dispossession, the suit is governed by Article 142 and it cannot be said that in all cases Article 144 is to govern the case once the plaintiff has proved a title to the property. Dalip Singh J., who wrote the judgment of the Full Bench further held that dispossession may he either actual in the sense of an existing actual possession being forcibly terminated by actual dispossession, or it may be a legal constructive possession being terminated by a legal dispossession.
8. It was submitted by Mr. Amrit Lal Bahri in the alternative that even if the evidence of the plaintiff's possession over the Pakistan property after the death of Jiwan Singh could not be said to be conclusive, it could not be presumed without any evidence to that effect mat the contesting defendant had gone into possession of the Pakistan property in February, 1945. In that view of the matter it was submitted that the plaintiff would at best be deemed to have been constructively dispossessed on August 15, 1947, or on some date thereafter when the defendant was able to obtain the Sondh land from the Government in lieu of the Pakistan property. In that connection counsel referred to the judgment of their Lordships of the Privey Council in Trustees, Executors and Agency Co., Ltd. v. Short, (1888) 13 AC 793. In the Privy Council case it was field that abandoned possession leaves the rightful owner in the same position in all lespects as he was before the intrusion took place. The argument of counsel was that by the partition of the country, the plaintiff had not been dispossessed by the defendant and that the earliest point of time at which the defendant can be deemed to have dispossessed the plaintiff is when he got the Sondh land which could not be before tha partition of the country. Reference was then made to a Single Bench judgment of the Orissa High Court in Kunja Atabudhi v. Bhagabat Naik, AIR 1953 Orissa 103, wherein it was held that though intermittent acts of possession cannot create title by adverse possession, such acts may be sufficient to keep .1 title of the owner of the property alive Counsel lastly put before us in this connection the judgment of the Judicial Commissioner, Manipur, in Nong-maithem Gournmani Singh v. Mayengbam Ibungohal Singh, AIR 1957 Manipur 15. The judgment in that case does not appear to be relevant for deciding the matter in issue before us as the case before the learned Judicial Commissioner related to adverse possession which is not a matter raised in the instant case.
9. Mr. P. S. Mann, appearing on behalf of the contesting respondent, invited our attention to the specific plea raised by Arjan Singh in his written statement to the effect that he had been in continuous possession of the pro-perty in dispute. It was argued that though the said plea was generally denied in the corres-pending paragraph of the replication filed of the plaintiff it was not specifically averred by the letter that he was in actual possession of the property in Pakistan after the death of Jiwan Singh. Counsel submitted that if the plaintiff had taken up any such definite plea, the defendant would nave led definite evidence to refute the allegation to that effect. There is no doubt that no definite plea was taken up about the plaintiff having taken actual physical possession of the Pakistan property after the death of Jiwan Singh either in the plaint or in the replication and no amount of evidence can be looked into in the absence of a plea. At the same time it cannot possibly be inferred from a mere want of the plaintiff's plea of possession that Arjan Singh defendant was in possession of the Pakistan property from February 8, 1945 to August 15, 1947. The claim of the defendant throughout the case has been that he has been in continuous possession of the property in dispute since 1947. The main basis of the plaintiff's suit is no doubt his title to the Pakistan property, but the cumulative effect of reading the pleadings of the parties is that the plaintiff claimed possession on the ground of his having been constructively dispossessed by Arjan Singh having taken over the Sondh land and house. This according to the defendant happened in 1947. The suit having been filed within twelve years from that date was within limitation under Article 142 of the Schedule to the Limitation Act (9 ot 1908).
10. From whatever angle the matter is looked into, the finding of the learned District Judge to the effect that the suit was barred by time under Article 140 does not appear to be according to law. The suit was held to be within time by the trial Court on the basis of the evidence of plaintiff's possession of the Pakistan land. The said evidence which has already been discussed above does not appear to have been pointedly brought to the notice of the learned District Judge, In these circumstances we hold that in substance the plaintiff claimed possession on the basis of his having been constructively dispossessed by the defendant's taking exclusive possession of the land and house in village Sondh which could not possibly have occurred before the lands were allotted in the name of the defendant sometime after August 15, 1947. We have, therefore, no hesitation in reversing the finding of the learned District fudge on issue No. 3, and in holding that the suit of the plaintiff-appellant was not barred by time.
11. The findings of both the Courts below on all the issues (except issue No. 5) being in favour of the plaintiff, he is entitled to a decree for possession The finding of the first appellate Court on issue No. 5 is wholly immaterial for the decision of this suit in view of the categorical finding of both the Courts below in favour of the plaintiff on issue No. 1.
12. For the foregoing reasons this appeal is allowed. The decree of the Court of the District Judge, Jullundur, is reversed and for it is substituted the decree of the trial Court in favour of the plaintiff-appellant with costs throughout.
Mehar Singh, J.
13. I agree.