Gurbachan Kaur v. Harbans Kaur & Ors.

The plaintiff/appellant by way of this regular second appeal has impugned the judgment and decree dated 11.1.1991 passed by the learned lower appellate Court. The plaintiff/appellant filed a suit for declaration claiming ownership of the land in dispute on the plea that the property in dispute was owned by Har Kaur widow of Saun Singh alias Sant Singh. The property was mortgaged with possession with Buta Mal son of Maggar Mal, and after the death of Har Kaur, the plaintiff/appellant inherited the suit property as owner on the basis of 'Will' dated 21.12.1971 executed by Har Kaur in favour of plaintiff/appellant. R.S.A. No. 798 of 1991 (O&M) -2- The mutation No. 1664 in favour of defendant No. 1 was also challenged being illegal, having been entered during the life time of Har Kaur. It was claimed that Har Kaur died in June, 1972. On notice, the suit was contested by taking a stand that there were two Har Kaurs. One was widow of Saun Singh and another Har Kaur was wife of Sant Singh. The genuineness of the 'Will' was also disputed. It was also pleaded that the suit as framed was not maintainable. It was claimed that the plaintiff had no locus standi to file the suit or to continue the suit in the present form. The plea that the suit was time barred was also raised. The learned trial Court was pleased to decree the suit by recording a finding that the suit was within limitation and further that Saun Singh as well as Sant Singh was one and the same person, and Har Kaur was widow of Saun Singh . The learned trial Court was pleased to hold that the 'Will' was proved on record and, thus, decreed the suit. In appeal, the learned lower appellate Court has been pleased to reverse the findings recorded by the learned trial Court by holding that the suit for declaration was time barred, as cause of action had accrued to the plaintiff/appellant on 21.12.1971, and the suit having been filed after 14 years of the cause of action was hopelessly barred by time. The learned lower appellate Court has been further pleased to hold that the suit for declaration was not competent in view of Proviso 2 to Section 34 of the Specific Relief Act, as it was admitted case in the plaint that defendants No. 13 to 15 were in possession of the property. The learned lower appellate Court placed reliance on the judgment of the Hon'ble Supreme Court in Ram Sharan and another Vs. Smt. Ganga Devi, AIR R.S.A. No. 798 of 1991 (O&M) 1972 SC 2865. -3- The learned lower appellate Court was pleased to reverse the finding of the learned trial Court holding that Har Kaur was one lady and not two. This, finding has been reversed by the learned lower appellate Court by taking into consideration the documentary and oral evidence which showed that there were two Har Kaurs, one was widow of Saun Singh and other of Sant Singh. The finding of the learned trial Court in upholding the 'Will' was also set aside by recording a finding that the plaintiff/appellant had failed to prove the 'Will', as the attesting witness failed to depose as envisaged under Section 63 of the Succession Act. The learned counsel appearing on behalf of the appellant contended that this appeal raises the following substantial questions of law: - "1. Whether the learned lower appellate Court mis- interpreted the provisions of Sections 34 and 42 of the Specific Relief Act to non-suit the appellant/plaintiff?

2. Whether the learned lower appellate Court was bound in law to have given an opportunity to the plaintiff/appellant to amend her plaint so as to include prayer for consequential relief?

3. Whether the learned lower appellate Court mis- interpreted the provisions of Section 58 of the Limitation Act to hold that the suit was barred by limitation?" In support of the substantial questions of law, the learned counsel for the appellant contended that the learned lower appellate Court mis-interpreted the provisions of Sections 34 and 42 of the Specific Relief Act, 1877 in coming to the conclusion that the mere suit R.S.A. No. 798 of 1991 (O&M) for declaration was not competent. -4- The contention of the learned counsel for the appellant is based on the fact that it was an admitted case that the land in dispute was mortgaged with respondents No. 9 to 12 and, therefore, the consequential relief of possession was not available to the plaintiff/appellant at the time of filing of the suit for declaration. The plaintiff/appellant could seek possession by redemption of mortgage under the Redemption of Mortgage Act, 1913 after succeeding to get the declaration prayed for and, therefore, mere suit for declaration was competent. In support of this contention, reliance has been placed on the judgment of this Court in Abhay Chand Ram Chand Vs. Ram Chand Wazir Chand and others, AIR 1966 Punjab 526, wherein this Court has been pleased to lay down as under: - "4. In this application the contention of the learned counsel for the applicant is that in view of the provisions of sub-section (3) of section 4 of the Act, a dispute with regard to a claim to compensation is to be settled by the Collector in the matter of appointment and the money is not immediately available to respondent 1, should a dispute arise. So it cannot be said that the Collector holds the amount on behalf of respondent 1 just as an executing Court holds an amount recovered in the execution of a decree for and on behalf of the decree-holder. Sub-section (3) of section 4 of the Act says: "Where there is any dispute as to the person or persons who are entitled to the compensation, the Collector shall decide such dispute and if the Collector finds that more than one person is entitled to compensation, he shall apportion the R.S.A. No. 798 of 1991 (O&M) -5- amount thereof amongst such persons." This provision at first glance indicates that such a dispute must go to the Collector alone. But while section 10 of the Act bars any Court or any officer or authority questioning any proceedings taken or order made under the Act and the orders made are declared to be final, jurisdiction of a civil Court to settle a civil dispute in the shape of a question with regard to the right to property has not been barred. In the circumstances, the applicant can seek a decree from an ordinary civil Court determining his right to part of the compensation amount. As the apportionment has to be done by the Collector under sub-section (3) of Section 4 of the Act, the amount remains with the Collector under the statute untill that stage arises, where a dispute with regard to the claim to compensation comes about. The situation is, therefore, not the same as when a Court realises in execution of a decree an amount for and on behalf of the decree-holder. In that case of course it holds the amount on behalf of the decree-holder. As much cannot immediately be said with regard to respondent 1, as dispute in regard to apportionment of the compensation is raised by the applicant, although not yet before the Collector but before a civil Court, so as to obtain declaration of his right to apportionment of that compensation. So that the Madras case does not completely cover the facts of the present case." There is force in the contention raised by the learned counsel for the appellant. The finding of the learned lower appellate Court holding that the mere suit for declaration was not competent, therefore, cannot be sustained in law. In view of the finding that the mere suit for declaration was competent, in the facts and circumstances of the present R.S.A. No. 798 of 1991 (O&M) -6- case, the second substantial question of law raised does not arise for consideration. The third substantial question of law deserves to be answered against the plaintiff/appellant, as the suit filed was hopelessly barred by time. However, the learned counsel for the appellant vehemently contended that the learned lower appellate Court mis-interpreted the Article 68 of the Limitation Act to hold that the cause of action accrued to the plaintiff/appellant on the date of death of Har Kaur, whereas, in fact, cause of action accrued to the plaintiff/appellant only when his right was threatened. In support of the plea raised, the learned counsel for the appellant placed reliance on the judgment of this Court in Ibrahim Vs. Smt. Sharifan, AIR 1980 Punjab and Haryana 25. On consideration, I find no force in the contention raised by the learned counsel for the appellant. In the case of Ibrahim Vs. Smt. Sharifan (supra), the plaintiff was in possession of the property in dispute, and it was in that situation that this Court was pleased to lay down that the cause of action to maintain the suit accrued to the plaintiff in said case when his possession was threatened for the first time. However, in the case in hand, it is not disputed that the property was in possession of the mortgagees, and not in possession of the plaintiff/appellant and, therefore, the question of threat to his possession did not arise to give him cause of action to file the suit. It may be noticed that even in the suit filed, the plaintiff had shown the cause of action to have accrued to him on the death of Har Kaur and the suit was admittedly filed after the expiry of period of R.S.A. No. 798 of 1991 (O&M) -7- limitation from the date of cause of action. The learned Courts below, therefore, were right in holding the suit to be time barred. In support of second substantial question of law, the learned counsel for the appellant has placed reliance on the judgment of this Court in Bhagat Singh Vs. Satnam Transport Company, AIR 1961 Punjab 278, wherein this Court has been pleased to lay down that in case, there was any defect in the suit for want of consequential relief, an opportunity can be given to the plaintiff to amend the suit. In view of the fact that the substantial question of law is answered against the plaintiff/appellant, the suit filed by the plaintiff is held to be time barred and, thus, not competent. Resultantly, the appeal is ordered to be dismissed, but with no order as to costs. March 16, 2009 reena/R.S. (Vinod K. Sharma) Judge