IMPORTANT POINT
Suit for possession filed by the plaintiff was not barred by time as Punjab Limitation (Custom) Act, 1920 did not apply to the suit in question.

JUDGMENT

Shivaraj V. Patil, J.-This appeal is filed by the plaintiffs assailing the judgment and decree passed by the High Court in a second appeal reversing the judgment and decree of the first appellate court affirming the judgment and decree of the trial court.

2. The plaintiffs filed suit against the defendants for possession of shares in the suit properties. The trial court as well as the first appellate court concurrently held that the original plaintiff Surtu was daughter of Basanti, who had inherited the life estate in the property of her husband Sihnu and his brother Nainu; that the parties are governed by custom on which a widow having life estate in the ancestral property does not have the right of alienation. In view of these concurrent findings it was held that the oral gift made by Basanti in favour of Ram Ditta and Khazan on 20th February, 1936 in respect of the suit properties was void and not binding on Surtu. Ram Ditta and Khazan have been held to be collaterals of Sihnu within fourth degree, who would have inherited the suit lands after the death of Basanti, had she died before coming into force of Hindu Succession Act. Their defence that gift was made by way of surrender or in acceleration of succession was rejected by the trial court as well as the first appellate court stating that the gift was not of entire holding of Basanti as she had retained one-third property for herself and that the gift cannot be held to be surrender or in acceleration of succession. The defendants raised objection that the suit of Surtu was barred under Punjab Limitation (Custom) Act, 1920 (for brevity the Act ). The trial court recorded a finding that the suit filed by Surtu was within time and this finding was affirmed by the learned District Judge in first appeal relying on Full Bench judgment of the High Court in Narotam Chand and another vs. Mst. Durga Devi [AIR 1949 East Punjab 109], that the suit of the plaintiff was governed by general law of limitation under Article 65 of the Limitation Act, 1963 (old Act of 1908) wherein the period of limitation prescribed is 12 years for a suit for possession of immovable property from the date of cause of action that has arisen to Surtu on the death of Basanti on 2.9.1968 and not by the Act.

3. The High Court in the second appeal in the impugned judgment has recorded, thus:-

"The preliminary objection of limitation that suit of Surtu was barred under Punjab Limitation (Custom) Act, 1920, (hereinafter called as the Act ), is also decided against the appellants-defendants. Shri Bhupender Gupta, learned counsel appearing for appellants-defendants, has not challenged the concurrent findings of fact arrived at by both the Courts below that Basanti had inherited life estate in the property of her husband Sihnu alias Lehnu as well as his brother Nainu which was ancestral in their hands and she could not alienate the said property by way of oral gift dated 2.2.1936 under the custom governing the parties. Shri Bhupender Gupta has limited his challenge to the findings of both the Courts below on the point of law that the suit of Surtu was time barred under Punjab Limitation (Custom) Act, 1920.

Learned single Judge of the High Court allowed the second appeal holding that the suit filed by the plaintiff was barred by time observing that both the courts below did not correctly appreciate and apply the aforementioned Full Bench decision, and set aside the judgment and decree passed in favour of the plaintiff dismissing the suit as barred by time. In these circumstances the plaintiffs have brought this appeal to this Court.

4. At the outset it may be stated that the only point that arise for consideration in this appeal is whether the suit filed by the plaintiff was barred by time.

5. The learned counsel appearing on either said in their arguments reiterated the submissions that were made before the High Court. While the learned counsel for the appellants challenged the correctness of the impugned j