Jammu & Kashmir High Court

Karan Singh And Another vs Krishan Singh And Another on 21 February, 2022

                                                                         Sr. No. 19


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                      CR No. 14/2013
Karan Singh and another                           .....Appellant(s)/Petitioner(s)
                     Through: Mr. Karman Singh Johal, Advocate.
                vs
Krishan Singh and another                                    ..... Respondent(s)
                     Through: Mr. Vikram Sharma, Sr. Advocate with
                              Mr. Sachin Dev Singh, Advocate.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1. The present revision petition has been filed by the petitioners against

the order dated 11.12.2012 passed by the Court of Second Additional

Munsiff, Jammu (hereinafter to be referred as the trial court) whereby

the learned trial court has decided the preliminary issue in favour of

respondent No. 1.

2. It is stated in the petition that the learned trial court has wrongly

decided the issue of limitation in favour of the plaintiff/respondent

No.1 The main ground urged in the present petition is that the

respondent No. 1 could not have filed the suit for declaration, fifty

years after the sale deed was executed in favour of the petitioner No. 1.

3. Mr. Karman Singh Johal, learned counsel appearing on behalf of the

petitioners submitted that the suit is hopelessly time barred as the sale

deed was executed in the year 1954, whereas respondent No. 1 is

seeking declaration with regard to property regarding which sale deed

was executed in favour of respondent No. 1 as joint property in the

year 2003. He further argued that even if assuming for the sake of

arguments, Article 119 of the Limitation Act is applied, still the suit

would be time barred. He placed reliance upon the judgment of the

Apex Court in Raghwendra Sharan Singh V Ram Prasanna Singh

(Dead) By Legal Representatives, (2020) 16 SCC 601.

4. Mr. Vikram Sharma, learned senior counsel appearing on behalf of

respondents vehemently argued that the case of the respondent No. 1

before the trial court was that right from the day of execution of the

sale deed in favour of petitioner No. 1 i.e. in the year 1954, the

property continued to be a joint family property and further it was the

respondent No. 1, who raised a construction of house in the year 1986-

87, as such, the learned trial court has rightly decided the issue by

returning a finding that the cause of action for declaration of title

cannot arise until or unless the other side has done some tangible act

prejudicial to the plaintiff's right. Mr. Sharma submitted that the suit is

within the period of limitation as per the Article 119 of Limitation Act

Svt, 1995.

5. Heard and perused the record.

6. The facts necessary for the disposal of the case are that the respondent

No. 1 filed a suit for declaration that the land measuring 1 Kanal 13

Marlas situated at Nawabad Jammu purchased by virtue of sale deed

executed on 11 Asuj 2011 corresponding to the year 1954 was in fact

purchased by Late Chain Singh, the father of the petitioner No. 1 and

respondent Nos. 1 and 2 and as such is a joint property. Further

declaration has also been sought that gift deed executed by the

petitioner No. 1 in favour of his son i.e. petitioner No. 2 on 29.02.2000

is null and void. It is stated that the land was in fact purchased by the

father of the petitioner No. 1 and respondents by virtue of sale deed

executed in the year 1954 though in the name of petitioner No. 1 as the

whole of the sale consideration was in fact paid by the father of the

petitioner No.1 and respondents, particularly when the petitioner No.1

was undergoing course of BVSc. at Meerut and passed out in 1959. It

is also stated that Shri Chain Singh expired in the year 1973 and in the

year 1986-87, respondent No. 1 also raised new construction in the

form of one room, one bathroom, one kitchen and veranda on the first

floor by raising RCC structure over the existing rooms on the ground

floor, whereas the ground floor of the house was constructed by the

Late Chain Singh, father of petitioner No. 1 and respondents. It is also

averred that on 08.07.2002, respondent No. 1 came to know that the

petitioner No. 1 has executed a gift deed dated 29.02.2000 in favour of

the petitioner No. 2, but the same is void ab-initio, as the petitioner

No. 1 could not have executed the same because the property was joint

property and the respondent had one-third share in the said property.

An averment was also made in the plaint that petitioner No. 1 was

requested numerous times to get the land partitioned and he finally

refused to accede to the request on 25.11.2003 and the present suit was

filed on 23.12.2003. The written statement was filed in which a

preliminary objection was taken with regard to limitation and on the

basis of the pleadings of the parties, issues were framed by the trial

court and one of the issue i.e. issue No. 7 framed by the trial court was

as under:

"Whether the suit is hopelessly time barred? OPD-1&3."

7. Initially, the learned trial court treated the said issue as mixed question

of law and fact vide order dated 15.10.2010, however this court vide

order dated 26.07.2012 set aside the said order and directed the

learned trial court to decide the said issue.

8. The learned trial court after considering rival arguments of the parties

vide order dated 26.07.2012 rejected the contention of the

defendants/petitioners herein and decided the said issue in favour of

the plaintiff/respondent No. 1.

9. A perusal of the order reveals that the learned trial court has

considered the issues of limitation qua both the reliefs claimed by

plaintiff/respondent No. 1. So far as relief vis-a-vis gift deed is

concerned, the trial court has held that the suit is well within the period

of limitation as the same was filed in December 2003 and as per the

averment made in the plaint, the respondent No.1 obtained the

knowledge of the said deed only on 08.07.2002.

10. The contention raised by Mr. Karman Singh Johal, learned counsel for

petitioners is that the relief with regard to suit land as joint property

purchased vide sale deed executed in the year 1954, deed could not

have been sought by respondent No. 1/plaintiff after 49 years of the

execution of the sale deed.

11. It needs to be noted that the respondent No. 1 has not filed a suit for

declaration that the sale deed is null and void and rather the contention

of respondent No. 1 is that though the suit land was purchased in the

name of petitioner No. 1 by the deceased father, nonetheless it was a

joint property purchased by the deceased father out of his own income

in the name of petitioner No. 1, the fact disputed by the petitioners in

the written statement.

12. Article 119 of the Limitation Act is reproduced as under.

            Description of suit            Period           of Time from which
                                           limitation          period begins to
                                                               run
            Suit for which no Six Years                        When the right to
            period of limitation                               sue accrues.
            provided elsewhere in
            this schedule.

13. So far as the Limitation Act is concerned, no article provides any

period of limitation for such type of suit and as such, the Article 119

of the Limitation Act would apply. A perusal of the Article 119

Limitation Act would reveal that the period of limitation would begin

when the right to sue accrues to the plaintiff. The learned trial court

has held that as the plaintiff was in possession of the suit land, no suit

for declaration of title could have been filed until or unless the

defendant had done something prejudicial to the plaintiff's right and in

arriving at this conclusion, the learned trial court too has resorted to

Article 119 of the Limitation Act. Rightly so, no right to sue could

have accrued to the respondent No.1 to seek any declaration with

regard to the suit land as joint property until or unless the status of the

property and consequently the right vested in the respondent No.1 with

regard to the said property was disputed/threatened by anyone. In

Gannon Dunkerley and Co. Ltd. v. Union of India, (1969) 3 SCC

607 apex Court has observed as under:

11. The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Article 120. The Solicitor-General appearing on behalf of the Union of India contended that even if the claim falls within the terms of Article 120 of the Limitation Act, it was barred, for, the appellant Company had in the suit made a claim for work done more than six years before the institution of the suit. Counsel submitted that under Article 120 the period of limitation commences to run from the date on which the defendant obtains the benefit of the work done by the plaintiff. But under Article 120 of the Limitation Act the period of six years for suits for which no period of limitation is provided elsewhere in the Schedule commences to run when the right to sue accrues. In our judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and

unequivocal threat to infringe that right by the defendent against whom the suit is instituted: Bolo v. Kokan [LR 57 IA 325 at p 331] .

14. This Court is of the considered opinion that there is no illegality in

the order impugned and the learned trial court has rightly come to the

conclusion that the period of limitation is to be reckoned from the

day, when the right to sue accrued to the respondent No.1, that

accrued to the respondent No. 1 on 08.07.2002, when gift deed came

to his knowledge.

15. The judgment of the Supreme Court in Raghwendra Sharan Singh V

Ram Prasanna Singh (Dead) By Legal Representatives (supra) as

cited by Mr. Karman Singh Johal, learned counsel for the petitioners is

not applicable in the present facts and circumstances of the case as in

the said case, original plaintiff was party to the gift deed that was

challenged by him subsequently as null and void, whereas in the