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ibrahim Vs. Sharifan - Court Judgment

LegalCrystal Citation
SubjectFamily;property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 383 of 1975
Judge
Reported inAIR1980P& H25
ActsLimitation Act, 1963 - Schedule - Article 58 and 113
Appellantibrahim
RespondentSharifan
Excerpt:
.....broke out, akber and other members of the family adopted hindu names so that they could remain safe during the disturbances. that the right to sue first accrued to the plaintiff on the date when the said mutation was sanctioned and that the suit having been filed beyond the period of three years was clearly barred by time......and that the period of limitation began to run from the year 1957 and not afterwards.5. the learned judge, before whom some judicial decisions were cited, distinguished the same on the ground that art. 58 of the act had not been noticed in all those authorities.6. while controverting the aforesaid findings of the learned single judge, it was contended by mr. aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in april, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive.....
Judgment:

Prem Chand Jain, J.

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.

4. On the issue of limitation, the learned single Judge held that the word 'first' occurring in Art. 58 has great significance; that the word 'first' could not be construed in any other manner except that the limitation in a declaratory suit shall begin to run when the cause to sue for the property first accrues to the plaintiff; that it was in the year 1957 that a cloud was cast on the right of the plaintiff to succeed to the entire land in dispute and that the period of limitation began to run from the year 1957 and not afterwards.

5. The learned Judge, before whom some judicial decisions were cited, distinguished the same on the ground that Art. 58 of the Act had not been noticed in all those authorities.

6. While controverting the aforesaid findings of the learned single Judge, it was contended by Mr. Aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive possession of the land without any interference of any kind by the defendant. On the other hand, it was contended by Mr. Kapur, learned counsel for the respondent, that a cloud was actually cast on the right of the plaintiff in the year 1957 when after the death of Akbar mutation of inheritance was sanctioned in favour of the plaintiff, the defendant and their mother in equal shares; that the right to sue first accrued to the plaintiff on the date when the said mutation was sanctioned and that the suit having been filed beyond the period of three years was clearly barred by time.

7. After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellant.

8. It may be observed at the outset that the word 'first' occurring in Art. 58 of the Act is of no significance at all for deciding the issue of limitation so for as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of a mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh v, Danbari Singh etc, (1956) 58 PLR 461. 1n our view, the contention of the leaned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April, 1969, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardised, The defendant is occupying e house in the village. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce and that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the snit filed by the plaintiff is within limitation,

9. No other point was urged

10. For the reasons recorded above, we allow this appeal, set aside the judgment and decree of the learned single Judge and restore that of the first appellate Court decreeing the suit of the plaintiff. However, in the circumstances of the case, we make no order as to costs.

11. Appeal allowed.


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