Balwant
Singh & Ors Vs. Gurbachan Singh & Ors [1992] INSC 205 (15 October 1992)
[KULDIP
SINGH AND N.M. KASLIWAL, JJ.]
ACT:
Limitation
Act, 1963:
Article
137-Excess land beyond terms of decree-In execution proceedings by mistake
recorded by way of symbolical possession-Application for rectifying mistake and
restitution-Date of commencement of limitation.
HEADNOTE:
In
execution of decree for pre-emption obtained by the respondent he was delivered
actual possession as well as symbolic possession of lands. According to the
decree, the respondent was only entitle to actual possession, and so far as the
delivery of symbolic possession was concerned, it was beyond the terms of the
decree.
The
father of the appellants having come to know about the aforesaid mistake, filed
a suit for declaration and for permanent injunction in the year 1965, which was
decreed in his favour, and the said declaratory decree was affirmed in appeal
by the Additional District Judge on 12.5.1969, but the relief of injunction was
denied as he was in actual possession of the portion over which symbolic
possession was recorded in execution proceedings. This order became final.
The
respondent in the appeal filed a suit for partition in the year 1973 claiming
not only the lands in which he had obtained actual physical possession, but
also the lands on which he was granted symbolic possession in the execution
proceedings in 1963. After the filing of the suit for partition, the appellants
filed an objection petition under sections 47,151 and 152 of the Code of Civil
Procedure praying that necessary correction may be made in revenue record by
restitution of excessive area wrongly delivered to the decree-holder. The
respondent decree-holder contested the application and one of the ground raised
was that the objection petition was barred by limitation as the same was that
the objection petition was barred by limitation as the same was not filed
within three years of the order dated 13.6.1963, under which symbolic
possession was given to the decree-holder.
The
Sub-Judge held that the limitation will only start to run when the
respondent-decree-holder tried to interfere in the possession of the
petitioners by filing the partition proceedings in the year 1973. It was also
held that the decree-holder had already obtained possession of the land to
which he was entitled under the decree and he was not entitled to retain the
possession of the excessive area of which only symbolic possession was given to
him.
Aggrieved
by the aforesaid order, the decree-holder filed a revision before the High
Court, and a Single Judge allowed the revision on the ground that the
limitation in case of such applications was three years, and the symbolic
possession having been delivered on June 13,1963, the application filed on July 22,1973 was barred by time. It was further
held, that actual possession of the land was never delivered by the Executing
Court and it was only symbolical possession which was delivered, and for the
purpose of restitution, if at all, there was a necessity to move the
application, the same could be done within three years from the date of the
delivery of the symbolical possession. The order of the Executing Court was accordingly set aside, and the
application filed by the judgment-debtor was dismissed.
In the
appeal to this Court, on the question regarding the date from which the period
of limitation shall commence under Article 137 of the Limitation Act, 1963.
Allowing
the appeal, this Court,
HELD :
The period of limitation under Article 137 is three years which commences from
the date when the right to apply accrues. The question when such right to apply
accrues will depend on the facts and circumstances of each case.
[17-E]
In the instant case, in execution of the decree for pre-emption on 13.6.1963
the delivery of symbolic possession on an area measuring 62 canals, 13 marlas
was wrongly recorded. The father of the appellants continued to remain in
possession over the aforesaid land and he also filed a declaratory suit
challenging the recording of the delivery of symbolical possession in favour of
the decree-holder. The suit was decreed in his favour by the trial court and
confirmed by the Additional District Judge by order dated 12.5.1969. In 1973
the decree-holder filed the suit for partition claiming the land on the basis
of order dated 13.6.1963. An objection petition was submitted by the appellants
in the Executing Court on 22.7.1973 of rectifying the
mistake and for restitution of the land for which symbolical possession was
wrongly recorded. The period of limitation under Article 137 would therefore
commence when actual threat of dispossession commenced i.e. on taking the
proceedings for partition in the year 1973. [17-F-H, 18-A] The High Court was
not right in holding that the limitation would commence from 13.6.1963 and not
in 1973.[18-B] This is a case where by mistake excess land beyond the terms of
the decree was recorded by way of symbolical possession in execution
proceedings. This fact is not disputed by the decree-holder. This error has
been rightly corrected by the Executing Court
on an objection petition filed under section 147 of the Code of Civil Procedure
read with section 151. The judgment in the declaratory suit has also become
final and binding on the decree-holder. It is not considered proper in the
interest of justice to prolong this litigation by remanding the matter to the
High Court.
The
judgment of the High Court dated 28.9.1978 is therefore set aside and the
judgment of the Executing
Court dated 19.2.1977
is restored. [18-C-D-F] Merla Ramanna v. Nallaparaju and Others,[1995] 2 S.C.R.
938, relied on.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2822 of 1979.
from
the Judgment and Order dated 28.9.1978 of the Punjab and Haryana High Court in Civil Revision No. 480 of 1977.
E.C. Agrawala
for the Appellants.
Bishambar
Lal Khanna and Ms. Geetanjali Mohan for the Respondents.
The
Judgment of the Court was delivered by KASLIWAL, J. This appeal by grant of
special leave is directed against the judgment of Punjab & Haryana High
Court dated September
28,1978. The short
controversy raised in the present case is regarding the date from which the
period of limitation shall commence under Article 137 of the Limitation Act,
1963. According to the facts found established on record, Grubachan
Singh-respondent was delivered actual possession of 135 Kanals of land and
symbolical possession of 62 kanals, 13 marlas on June 13,1963 in execution of decree for pre-emption obtained by him.
According to the decree, Gurbachan Singh was only entitle to actual possession
was concerned, it was beyond the terms of the decree. Ladha Singh, father of
the appellants having come to know about the said mistake, filed a suit for
declaration and for permanent injunction in the year 1965. The said suit was decreed
in favour of Ladha Singh and the said declaratory decree was affirmed in appeal
by the Additional District on actual possession of the portion over which
symbolical possession was recorded in execution proceedings. It remains
undisputed that the aforesaid judgment given by the Additional District Judge, Karnal
dated 12.5.1969 became final.
Gurbachan
Singh has now filed a suit for partition in the year 1973 claiming not only 135
kanals on which he had obtained actual physical possession, but also 62 Kanals
and 13 marlas on which he had been granted symbolical possession in the
execution proceedings in 1963. After the filing of the suit for partition, the
appellants filed an objection petition under Sections 47/152/151 of the code of
Civil Procedure Praying that necessary correction may be made in revenue record
by restitution of excessive area wrongly delivered to the decree-holder. The
respondent-decree-holder contested the above application. Apart from the other
objections, one the ground raised was that the objection petition was barred by
limitation as the same was not filed within three years of the order dated
13.6.1963 under which the symbolical possession was given to the decree holder.
The
Learned Sub-Judge First Class, Karnal held that the limitation will only start
to run when the respondent- decree-holder tried to interfere in the possession
of the petitioners by filing the partition proceedings in the year 1973. It was
also held that the decree-holder had already obtained possession of the area
measuring 135 Kanals to which he was entitled under the decree and he was not
entitled to retain the possession of the excessive area of 62 Kanals, 13 marlas
of which only symbolical possession was given to him. It was thus, held that
the possession of the land measuring 62 Kanals, 13 marlas of which symbolical
possession was obtained was to be restored in favour of the
objector-judgment-debtor.
Aggrieved
against the aforesaid order, the decree- holder filed a revision before the
High Court. Learned Single Judge allowed the revision on the ground that the
limitation in case of such applications is three years and as the symbolical
possession had been delivered on June 13,1963, the present application filed on July 22,1973 was barred by time. The High Court
further held that actual possession of the land was never delivered by the Executing Court and it was only symbolical
possession which was delivered. Thus, for the purpose of restitution, if at
all, there was a necessity to move the application, the same could be done
within three years from the date of the delivery of the symbolical possession.
The High Court, as such allowed the revision and set aside the order of the Executing Court and dismissed the application filed
by the judgment-debtor.
3 We have
heard Learned Counsel for the parties and have gone through the record. It is
not in dispute that Article 137 of the Limitation Act 1963 shall govern the
present case. Article 137 reads as under:
table
====== "137. Any other application for which Three years. When the no
period of limitation is provided right to apply elsewhere in this Division.
accrues." table ===== The period of limitation under Article 137 is three
years which commences from the date when the right to apply accrues. The
question when such right to apply accrues will depend on the facts and
circumstances of each case. In the present case in execution of the decree for
pre-emption on 13.6.1963, the delivery of symbolical possession on an area
measuring 62 Kanals, 13 marlas was wrongly recorded. Ladha Singh, father of the
appellants continued to remain in possession over the aforesaid land and he
also filed declaratory suit challenging the recording of the delivery of
symbolical possession in favour of the decree-holder. The Said declaratory suit
was decreed in favour of Ladha Singh by the trial court and was affirmed by the
Additional District Judge by order dated 12.5.1969. No in actual possession of
the land. The decree-holder now in 1973 filed suit for partition claiming land
on the basis of order dated 13.6.1963. The appellants as such submitted an
objection petition under Sections appellants as such submitted an objection
petition under Sections 47/152/151 of the Code of Civil Procedure in the Executing Court on 22.71973 for rectifying the
mistake and for restitution of the land for which symbolical possession was
wrongly recorded. In the aforesaid admitted facts, we are of the view that the
period of limitation under Article 137 would commence when actual threat of
dispossession commenced i.e. on taking the proceedings for partition in the
1973. The High Court in our view was not right in holding that the limitation
in the facts and circumstances of the present case would commence from
13.6.1963 and not in 1973.
Even
otherwise, it is a case where by mistake excess land beyond the terms of the
decree was recorded by way of symbolical possession in favour of the
Decree-holder even in written arguments submitted before this court. This error
has been rightly corrected by the Executing Court on an objection petition filed under Section 47 of the Code
of Civil Procedure read with Section 151. Apart from that the judgment in the
declaratory suit filed by Ladha singh in this regard has also become final and
binding on the decree- holder. We, therefore, do not consider it proper in the
interest of justice to prolong this litigation by remanding the matter to the
High Court as prayed in the alternative on behalf of the respondents.
We
find support in the view taken by us on the decision of this Court in Merla Ramanna
v. Nallaparaju and others, [1995] 2 S.C.R. 938, in which it was held that an
application by a party to the suit to recover possession of properties which
had been taken delivery of under a void execution sale would be in time under Article
181 (corresponding Article 137 of the Limitation Act, 1963), if it was filed
within three years of dispossession.
In the
result, we allow this appeal, set aside the judgment of the High Court dated
28.9.1978 and restore the judgment of the Executing Court dated 19.2.1977. No order as to costs in the facts and
circumstances of the case.
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