R.L.ANAND,J - (1.) UNSUCCESSFUL plaintiffs Makhan Singh and his son Joginder Singh have filed the present appeal and it has been directed against the judgment and decree dated 8.5.1997 passed by Additional District Judge, Faridkot, who dismissed the appeal of the present appellants by affirming the judgment and decree of the learned trial Court dated 5.12.1995 passed by Additional Senior Sub Judge, Muktsar, who dismissed the suit of the plaintiffs.
(2.) IT may be mentioned here at the very outset that along with Makhan Singh and Joginder Singh, present appellants, Nazar Singh, Surat Singh, Amrik Singh and Sadha Singh, who were defendants No. 3 to 6 in the trial Court, also filed an appeal against the judgment and decree of the trial Court and vide judgment dated 8.5.1997 (impugned judgment) both the appeals were dismissed. Nazar Singh, Surat Singh, Amrik Singh and Sadha Singh have not filed any appeal against the judgment and decree dated 8.5.1997 in the High Court, but only Makhan Singh and his son Joginder Singh, plaintiffs No. 1 and 2, have come in the appeal, which I have heard with the assistance of the lawyers and also disposing of the same with the record of the trial Court. Facts can be gathered in the following manner :- Plaintiffs Makhan Singh and Joginder Singh filed a suit against Achhar Singh, defendant No. 1, his son Sucha Singh, defendant No. 2, Nazar Singh, Surat Singh, Amrik Singh and Sadha Singh, defendants No. 3 to 6 respectively, and these four defendants (No. 3 to 6) are the sons of Smt. Gurbachan Kaur, who was the real sister of Makhan Singh, plaintiff No. 1, and Achhar Singh, defendant No. 1. The plaintiffs sought a declaration that they are the owners to the extent of 1/2 share in the suit property detailed in the head-note of the plaint as legal heirs of Harbans Singh and in the alternative to be declared owners of 41 Kanals 16 Marlas of land, which is in their exclusive possession, and their possession has become open and hostile for a period of more than 12 years without payment of rent. The plaintiffs have further sought a declaration that registered sale-deeds dated 14.9.1987 and 15.9.1987 executed by Achhar Singh, defendant No. 1, as attorney of Smt. Gurbachan Kaur, his sister, are forged, fabricated, without consideration and have also sought a decree for permanent injunction restraining defendant No. 2 Sucha Singh, who is the son of Achhar Singh, defendant No. 1, from alienating the suit property in any manner. Earlier the plaintiffs in the plaint claimed ownership of 1/6th share measuring 14 Kanals 19 Marlas out of the total suit land 89 Kanals 17 Marlas on the basis of family settlement with Gurbachan Kaur and also challenged the sale-deeds dated 14.9.1987 and 15.9.1987 executed by defendant No. 1 Achhar Singh in favour of his son Sucha Singh defendant No. 2, but during the pendency of the suit the plaintiffs amended the plaint and made an alternative claim of the ownership of the land to the extent of 1/2 share as stated above. Plaintiff No. 1 Makhan Singh and defendant No. 1 Achhar Singh are the real brothers. Defendant No. 2 Sucha Singh is the nephew of plaintiff No. 1 Makhan Singh. Defendants No. 3 to 6 are the sons of Smt. Gurbachan Kaur, who was the real sister of Makhan Singh, plaintiff No. 1, Achhar Singh, defendant No. 1 and Harbans Singh, who was also the real brother of Makhan Singh and Achhar Singh. The case set up by the plaintiffs is that Harbans Singh and Gurbachan Kaur used to reside in Pakistan and owned property. After partition Harbans Singh was not heard of nor he was seen by anybody. The suit property came into existence in consolidation as it was allotted in the name of Harbans Singh by rehabilitation department although he, as per law, was required to be considered as dead prior to 1954. According to the plaintiffs, plaintiff No. 1 and defendant No. 1 became owner in equal shares of the estate of Harbans Singh, but mutation of inheritance of Harbans Singh was sanctioned after coming into force of the Hindu Succession Act and the same was sanctioned also in favour of Gurbachan Kaur along with plaintiff No. 1 and defendant No. 1. But this mutation is against the law. It was sanctioned on 24.8.1983. It is further alleged by the plaintiffs that immediately after sanctioning of the mutation Gurbachan Kaur admitting herself as not the legal heir of Harbans Singh relinquished her right in favour of defendant No. 1 and plaintiff No. 1 equally. The land measuring 44 Kanals 19 Marlas was earlier owned by plaintiff No. 1 but now by the plaintiffs and they have never paid any rent and their possession over the land has become adverse. Gurbachan Kaur assured the plaintiffs to get the revenue record corrected. The suit property was the co- parcenary property of plaintiff No. 1 and defendant No. 1 and Gurbachan Kaur had no right regarding alienation in any manner. Defendant No. 1 Achhar Singh was a clever person. He got power of attorney from Gurbachan Kaur and on the basis of that power of attorney executed two sale-deeds dated 14.9.1987 and 15.9.1987 of the value of Rs. 32,000/- each in favour of his son Sucha Singh in order to usurp the right of plaintiff No. 1. According to the plaintiffs, both the sale-deeds are without consideration and fabricated. On the basis of those sale-deeds defendant No. 2 Sucha Singh is threatening to alienate the suit property and to interfere in the possession of the plaintiffs. The notice of the suit was given to the defendants. Defendant No. 5 admitted the claim of the plaintiffs as per plaint and further stated that plaintiff No. 1 and defendant No. 1 are his maternal uncles and they should get 1/2 share of the land of his mother. Thereafter he did not appear in the Court. Defendants No. 3, 4 and 6 were proceeded ex parte. So, we can say that defendants No. 3 to 6 did not give any contest to the alleged claim of the plaintiffs. The suit was, however, seriously contested by defendants No. 1 and 2, Achhar Singh and Sucha Singh respectively, and they pleaded that plaintiffs have no locus standi to file the present suit; that the suit is not maintainable in the present form; that the suit is not within limitation and that the suit is not properly valued for the purposes of Court fee and jurisdiction. The relationship, however, was admitted by these defendants. It was denied that the land in dispute came to the parties in lieu of the land left in Pakistan. It was denied that after creation of Pakistan Harbans Singh was not heard by anybody. Rather he used to visit Amritsar and other places for allotment of property and he roamed from one place to other for allotment of property and in the jamabandi for the year 1980-81 he is recorded owner of the property. When he was not heard then plaintiff No. 1 and defendant No. 1 gave application to the Patwari on 10.3.1983 for entering the mutation in favour of Makhan Singh, Achhar Singh and their sister Gurbachan Kaur. Mutation No. 2021 was contested. Makhan Singh and Achhar Singh engaged Mr. Giani Ram Singh, Advocate, who explained the facts and got the mutation sanctioned in favour of Makhan Singh, Achhar Singh and Gurbachan Kaur. In the jamabandi for the year 1985-86 Achhar Singh, Makhan Singh and Gurbachan Kaur became the owners of the suit land in equal shares. It was denied that Harbans Singh was liable to be considered dead prior to 1954. Rather he was considered dead prior to 1983 and this fact was admitted by the plaintiffs in their case. It was denied that the mutation is illegal. It was also denied that Gurbachan Kaur had relinquished her right in the suit property in favour of plaintiff No. 1 and defendant No. 1 or admitted them owners to the extent of 1/2 share each, rather all the three became owners of the estate of Harbans Singh. Gurbachan kaur through sale-deeds dated 14.9.1987 and 15.9.1987 sold the property to Sucha Singh. Plaintiff No. 1 was never in possession of the suit property nor it was a co-parcenary property. The power of attorney executed by Gurbachan Kaur in favour of Achhar Singh, defendant No. 1, was not forged one. It was maintained by defendants No. 1 and 2 that defendant No. 2 Sucha Singh has become the owner of the property on the basis of sale-deeds executed by defendant No. 1. The plaintiffs filed a re-joinder to the written statement of defendants No. 1 and 2 and reiterated their allegations made in the plaint. On the above pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the plaintiff is owner in possession of the suit land ? OPP 1-A. Whether plaintiff has become owner by way of adverse possession ? OPP 1-B. Whether Harbans Singh died before coming into force the Hindu Succession Act as alleged, if so, its effect ? OPP 1-C. Whether the plaintiff has taken contradictory pleas in that plaint, if so, to what effect ? OPD 2. Whether the sale-deeds dated 14.9.1987 and 15.9.1987 executed by defendant No. 1 are forged and without consideration and are not binding upon the plaintiff ? OPP 3. If issue No. 1 is proved, whether the plaintiffs are entitled to declaration and permanent injunction as prayed for ? OPP 4. Whether the plaintiffs have no locus standi to file the present suit ? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 6. Whether the suit of the plaintiff is not within limitation ? OPD 7. Whether the suit of the plaintiff is not properly valued for the purposes of Court fee and jurisdiction ? OPD 8. Relief. 3. The parties led oral and documentary evidence. Issues No. 1, 1-A, 1-B, 2, 3 and 4 were decided against the plaintiffs and in favour of defendants No. 1 and 2. Issues No. 1-C, 5 and 7 were decided against the contesting defendants. Issue No. 6 was decided in favour of the defendants. Issue No. 6 was decided in favour of the defendants and against the plaintiffs and it was held that the suit of the plaintiffs is barred by limitation. On the basis of the above findings, the suit of the plaintiffs was dismissed.
(3.) AGGRIEVED by the judgment and decree of the trial Court plaintiffs No. 1 and 2 and defendants No. 3, 4, 5 and 6 filed two separate appeals before the first Appellate Court and both the appeals were dismissed vide impugned judgment and decree dated 8.5.1997. However, in the High Court only plaintiffs No. 1 and 2 have come in the appeal.;