The judgment emphasizes the importance of proving inheritance rights and the applicability of the Limitation Act in property disputes.

Amit Rawal J.

The present Regular Second Appeal at the instance of the appellant-defendant is directed against the judgment and decree dated 1.10.1988, whereby, suit of the respondent-plaintiffs dismissed by the trial Court, has been decreed.

2. The plaintiff-Jawantri sought the declaration to be exclusive owner being the legal heir of father Gainda son of Chhaju in respect of land measuring 80 kanals referred to in the plaint (hereinafter called "suit land"). It was alleged that Gainda, father of the plaintiff was married to Shibi, his wife and out of loin, Jawantri was born. On demise of Gainda, the land was mutated in the name of mother of Gainda as mother of the plaintiff, predeceased Gainda. Shibi died in the year 1952. After her demise, mutation of aforementioned land, was effected in the name of Buli, who was not heir of Shibi but she managed to obtain the mutation. On the basis of her alleged Will dated 13.09.1965, the defendant-Kanshi Ram got the mutation of suit land alongwith other property of Buli in his favour, therefore, all these transfers were not binding upon the plaintiff as Buli had no right to execute the Will. It was disclosed that plaintiff had earlier filed the suit but the same was permitted to be withdrawn in view of order dated 26.11.1977, liberty was granted by the Lower Appellate Court to file fresh suit.

3. Defendant no.1 opposed the suit by denying that plaintiff was related to Gainda or Shibi or Bool Chand @ Buli. The earlier suit of the plaintiff and Sher Singh was dismissed by the trial Court on 15.2.1976. The suit was barred by law of limitation as per the provisions of Article 65 of the Limitation Act, 1963 (hereinafter referred to as "1963 Act").

4. Since the parties were at variance, the trial Court framed the following issues:-

"1. Whether the plaintiff is legal heir of Gainda and Shibi and is entitled to suit property? OPP

2. Whether Gainda is governed in matters of alienation; and succession by customary law as alleged in addl.plea no.2 of the written statement? OPD 1

3. Whether Bool Chand executed a valid Will in respect of suit property in favour of defendant no.1, if so, to what effect ? OPD.1

4. Whether the plaintiff has no right to challenge the Will ? OPD

5. Whether the suit is within limitation ? OPP

6. Relief."

5. The plaintiff in support of the aforementioned averments examined four witnesses and tendered into evidence Ex.P1 to Ex.P14, whereas defendants examined three witnesses.

6. The trial Court non-suited the plaintiff of having not complied with the provisions of Section 50 of Indian Evidence Act, in essence, did not prove herself to be the daughter of Gainda and dismissed the suit.

7. Mr. C.B.Goel, learned counsel appearing on behalf of the appellant-defendant in support of the memorandum of appeal raised the following submissions:-

The suit in the year 1978 was ex facie barred by law of limitation. The plaintiff has abandoned the right to challenge the mutation of 1955. Parties were governed by the custom as custom varied from village to village. The Lower Appellate Court erroneously relied upon the custom by holding that un-married daughter prior to commencement of Hindu Succession Act, had right to succeed to the estate of his father, for, Gainda died in the year 1944-45.

Buli executed a valid Will in favour of the appellant and mutation on the basis of the Will was rightly sanctioned. The plaintiff only filed the suit in 1972. Even if the permission had been granted, the suit was barred by law of limitation.

8. In support of the aforementioned submissions relied upon para nos.6 and 8 of the Division Bench judgment of this Court rendered in Sewti Devi vs. Kanti Parshad and others AIR 1973 Punjab & Haryana 126 and thus, urged this Court for setting aside the judgment and decree under challenge.

9. Per contra, Mr. Sanjiv Gupta, learned counsel appearing on behalf of the respondents submitted that customary law in Punjab is no longer res integra. The said law has been thrashed ou