Baba Daya Singh v. Jaskaran Singh And Others

Gokal Chand Mital, J.

1. Harnam Singh owned agricultural land measuring 24 Bighas 8 Biswas. In consolidation he was allotted 73 Kanals 2 Marlas for the aforsaid land. 24 Bighas Biswas of land was allotted to Harnam Singh in lieu of the land owned by him in Pakistan. Before 1947 he had Mortgaged 4 Bighas 12 Biswas to Gurcharan, Singh and others, whereas 14 Bighas 9 Biswas of land was mortgaged by him on 26th March, 1957 in favour of Kundan Singh. In this manner, he was left with 9 Bighas 7 Biswas in his possession. On 2nd April 1958 Harnam Singh died. On 6th May, 1960 mutation Exhibit D2 was sanctioned regarding his estate in favour of Thakar Singh, brother of the deceased, since he did not leave any widow or child. On 16th September 1971 he gifted the land to the Appellant. On 12th October, 1971 children of Gurdip Kaur filed the present suit for declaration that they are owners and in possession of 73 Kanals 2 Marjas of land, which was owned by Harnam Singh, on the basis of registered will Exhibit P-1; dated 8th March, 1958, left by Harnam Singh in favour of Shrimati Gurdip Kaur and impleaded Thakar Singh and the Appellant as Defendant since they wanted to interfere in their possession, permanent injunctions against them was sought. Thakur Singh disputed the will and pleaded that the mutaion was rightly sanctioned. It was further pleaded that the suit was barred by time. The trial Court decreed the suit after recording a finding that the will was duly proved and the suit within limitation. The lower appellate Court upheld the trial Courts decree and this is second appeal by the done from Thakur Singh.

2. After hearing the Learned Counsel for the parties I find that the finding of the Courts below is unassailable. The will is a registered one and its execution has been proved by the two attesting witnesses. The appreciation of the two attesting witnesses made by the Courts below could not be shown to be illegal accordingly, there is no scope for interference in second appeal. Hence the finding of the two Courts below about the execution of the will is upheld.

3. Adverting to limitation, the mutation Exhibit D2 in favour of Thakar Singh was sanctioned on 6th May, 1960 and the suit has been filed on 12th October, 1971 i.e. within 12 years of sanctioning of the mutation. Jamabandit (Exhibits P-13 and P-14) on record show that possession of Thakur Singh is recovered by the first time during the year 1965-66. Even if it is taken from the back date of the sanctioning of mutation, the possession of Defendants is not proved to be for more than 12 years. Article 68 of the Limitation Act, which is sought to be relied upon on behalf of the Appellant is not applicable to the facts of the present case as held by Letters Patent Bench in Abraham alias Dharam Vir v. Smt. Sharifan alias Skanti 1979 P.L.J. 469. The finding of the Courts below that the suit is within limitation is also upheld.

4. For the reasons recorded above, this appeal is devoid of merit and is dismissed.