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2017 Supreme(P&H) 1952
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
C.R. No. 3110 of 2017 (O&M)
Baljinder Singh
v.
Lakhbir Singh & Ors.
{Decided on 02/05/2017}
For the Petitioner:Mr. BS Jaswal, Advocate
Bar to Suit--Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2 Rule 2 CPC.
Adverse Possession--Starting point of limitation would not be the date of death of female owner as she was full owner but would be date of suit of adverse possession otherwise.
Headnote:(A) Limitation Act, 1963, S.65--Adverse Possession--Starting point limitation on death of female owner--In the instant case possession never became adverse to the plaintiffs--There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filling of the suit--The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of female owner but they have not been able to prove their adverse possession--The starting point of limitation would not be the date of death of female owner as she was full owner but would be date of suit of adverse possession otherwise.
In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) to Article 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise. (Para 8)
(B) Civil Procedure Code 1908, O.2 R.2--Bar to Suit--Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2 Rule 2 CPC. (Para 16)
(C) Civil Procedure Code 1908, O.2 R.2--Bar to Suit--The essential requirement for applicability of Order 2 Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar. (Para 15)
Mrs. Daya Chaudhary, J.:- The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 14.10.2016 (Annexure P-2) passed by Additional Civil Judge (Senior Division), Kapurthala, vide which, the application filed by the petitioner for demarcation of the land and to recall the warrant of possession has been dismissed.
2. Briefly, the facts of the case as mentioned in the petition, are that respondent Nos.1 to 3-plaintiffs have filed a suit for possession of land measuring 23 kanals and 11 marlas comprised in Khewat No. 12, Khatauni No. 38 Khasra No. 7//18/8-0, 23/7-11, 24/4-0, 25/4-0 situated in village Mand Allahbad Tehsil Bholath District Kapurthala as per jamabandi for the year 2002-03 along with fittings and fixture and all rights appurtenant thereto. Said suit was contested by respondent No.4-defendant and the same was decreed in favour of respondents No.1 to 3 vide judgment and decree dated 15.9.2012. Respondents No.1 to 3 filed execution application to get possession against respondent No.4. During pendency of the execution petition, the petitioner filed objections but the same were dismissed. Thereafter the petitioner filed an application for demarcation of the land and to recall warrant of possession, which was dismissed vide order dated 14.10.2016, which is subject matter of challenge in the present revision petition.
3. Learned counsel for the petitioner submits that the impugned order has been passed without application of judicious mind and the application for demarcation of the land and to recall warrant of possession has been dismissed being rendered infructuous, as warrant of possession has already been issued. Learned counsel further submits that it would be in the interest of justice in case demarcation is done before execution of warrant of possession to show as to which party is having possession on which part of the land. Learned counsel also submits that in case land is not demarcated, the petitioner would suffer an irreparable loss, which cannot be compensated in any manner.
4. Heard the arguments advanced by learned counsel for the petitioner and have also gone through the impugned order and other documents available on the file.
5. The facts relating to filing of suit, passing of decree in favour of respondents No.1 to 3, dismissal of objections filed by the petitioner and also moving of an application for demarcation and its dismissal thereof are not disputed. It is also not disputed that warrant of possession has already been issued. As per case of the petitioner, he is in actual cultivating possession of the land comprised in Khewat/Khatauni No. 28/22/46 Khasra No. 12//3/(6-0), 12//4/(8-0), 12//7min (6-2), 12//8 (4-9) situated within the revenue estate of village Mand Allahbad, Tehsil Bholath, District Kapurthala as per jamabandi for the year 2012-13 and has nothing to do with the land regarding which warrant of possession has been issued. The petitioner has prayed for getting the land demarcated only on the ground that under the garb of warrant of possession, the other party may take possession of his land. Said application has been dismissed by the trial Court on the ground that objections have already been dismissed and executing Court cannot go beyond the decree. Accordingly, application filed by the petitioner was dismissed being infrcutuous as warrant of possession had already been issued after dismissal of objections.
6. No doubt, the executing Court is to execute the decree on the basis of judgment passed by the trial Court but it is also not disputed that the objections were filed by the petitioner in the execution application and the same were dismissed. Subsequently warrant of possession was issued. It appears that the application for demarcation of the land has been filed just to delay the proceedings. In case the petitioner was having any grievance or demarcation of the land was necessary then the application should h
