NIAMAT SINGH Vs. DARBARI SINGH

JUDGEMENT

(1.) This second appeal raises two questions namely (1) whether the suit brought by the plaintiff is barred by time, and (2) whether the plaintiff having relinquished his own rights in a certain plot of land is entitled to bring a suit for the restoration thereof.

(2.) One Naunid Singh, a resident of village Barwala of the Delhi State died in the year 1935 leaving behind him Darbari Singh plaintiff, a son by one wife, and Niamat Singh and Chhotu Ram defendants, sons by another wife. On 14-6-1935 the parties appeared before a revenue officer and the land left by the deceased was mutated equally in the names of each of the three sons. Shortly thereafter the second wife of the deceased gave birth to a posthumous son by the name of Ehup Singh. The parties again appeared before the revenue officer in the year 1938 and the said officer mutated the land in the names of all the four sons. On 25-8-1949 Darbari Singh brought a suit for a declaration that he was the owner in possession of a one-half share in the estate of his father and that the remaining half share belonged to his step-brothers the defendants. The trial Court granted a decree in favour of the plaintiff and the decree of the trial Court Was upheld by the District Judge in appeal. The defendants are dissatisfied with the order and have come to this Court in second appeal.

(3.) The first point for decision in the present case is whether the plaintiff's right to bring the suit has been extinguished by efflux of time. It is common ground that the mutations on the basis of which the entries in the jamabandis were made and whereby the property left by Naunid Singh was mutated in equal shares in the names of his sons were attested as long ago as 14-6-1935 and 26-4-1938, that the plaintiff's suit was instituted on 3-10-1949 and that Article 120, Limitation Act which is applicable to this case prescribes a period of six years from the date on which the right to sue accrues. The defendants contend that the time began to run from 26-4-1938 when the second mutation was sanctioned and consequently that the suit was barred by time as it was instituted in October 1949 long after the expiry of the period of six years prescribed by Article 120. The plaintiff on the other hand alleges that the suit "was well within time as the plaintiff was in joint possession of the land in suit and the period of limitation commenced not on the date on which the adverse entry was made but on the date when his rights were actually interfered with. He became aware of his rights in the land on 20-1-1944, for it was on that day that the Punjab High Court held in a suit in which he appeared as a witness that the tribe to which he belonged was governed by the rule of chundawand.