HEMANT GUPTA, J. - (1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby their suit for possession of the suit land was dismissed.
(2.) THE undisputed facts are that the plaintiff-appellants are the legal heirs of deceased Sunder Singh natural son of Daya Singh. Sunder Singh was adopted by Taba Singh brother of Daya Singh. The defendants are the legal heirs of Daya Singh. Earlier, the legal heirs of Daya Singh filed a suit for declaration to the effect that the defendants-present appellants are not owners of 1/3rd share of the land measuring 51 kanals 5 marlas and the revenue record, recording Sunder Singh as adopted son of Taba Singh as owner and mortgagee is illegal and is liable to be corrected. Issue Nos. 1 and 2 in the said suit were :- "1. Whether the plaintiffs are the owners in possession of the suit property and whether the defendants have no right, title or interest therein and the entries in the revenue records about the title of the defendants are wrong ? 2. Whether the plaintiffs have become owners of the 1/3rd share of the land in dispute by adverse possession over a period extending 12 years as alleged in para No. 5 of the amended plaint ?" The said suit was decreed by the learned trial Court on 6.12.1965, but the learned First Appellate Court in its judgment and decree dated 3.5.1967 dismissed the suit by reversing the findings inter alia holding that the plaintiff has not become owner of the aforesaid 1/3rd share by adverse possession. The said judgment of the learned First Appellate Court was affirmed by this Court in R.S.A. No. 624 of 1967 vide judgment dated 30.3.1977. The appellants thereafter, filed the present suit for possession of the aforesaid land in which the defendants again raised a plea that they are in adverse possession of the suit land for more than 12 years. Issue No. 4 was framed in the present suit to the following effect:- "4. Whether the defendants are in adverse possession of the suit land for more than 12 years as owners thereof as alleged in para No. 5 of the preliminary objections and later in para No. 2 of the merits of the written statement ? OPD."
(3.) THE learned trial Court relied upon a judgment reported as Rajindera Singh v. Santa Singh and others, AIR 1973 SC 2537 to hold that the previous litigation between the parties does not arrest the running of the period of limitation during the pendency of the previous suit and that there was no bar for the plaintiffs to approach the Court by way of a suit for recovery of possession during the pendency of the previous litigation and, therefore, the present suit is barred by limitation. It was held that the defendants have become owners of the land in dispute by adverse possession. The appeal against the said judgment was dismissed holding that the injunction obtained by the present defendants in the earlier suit that the present plaintiffs were not to interfere in the possession of the defendants, cannot be extended to mean that the plaintiffs were restrained from claiming the suit land by way of filing a Civil Suit for possession. It was found that on 15.1.1964, the defendants have asserted their adverse possession by bringing Civil Suit, but the plaintiffs never instituted any suit for possession in respect of their share in the disputed land. It was also held that the period of limitation can be excluded only if the filing of the suit is stayed by an injunction order. Since the defendants are in continuous possession since the year 1964 onwards, the present suit filed on 28.8.1977 is clearly barred by limitation.;