Ms. Jaishree Thakur, J. (Oral):- CM-22-23-C-2019

There is delay of 133 days in filing and 1624 days in re-filing the appeal.

2. The applications are duly supported by affidavit.

3. For the reasons mentioned in the applications, the same are allowed and the delay of 133 days in filing and 1624 days in re-filing the appeal is condoned.

Main case

4. The appellant-plaintiff herein seeks to challenge the judgment and decree dated 19.07.2008 passed by the Civil Judge (Junior Division) Pathankot as well as judgment and decree dated 19.10.2013 passed by the Addl. District Judge, Pathankot whereby the suit of the plaintiff for declaration to the effect that he is owner in possession of 1/6th share of Kalu measuring 11 kanals 5 marlas in the land measuring 67 kanals 11 marlas situated in Village Barooii, HB No.369, Tehsil Pathankot and as entered in the jamabandi for the year 1988-89, has been dismissed.

5. In brief, the appellant-plaintiff herein filed the aforesaid suit claiming to be the person entitled to inherit the land of Kalu. It was alleged that Rijha, who was his parental great grand-father, had three sons namely Tottu, Santu and Kalu. Santu died first and his estate was inherited by his brothers namely Tottu and Kalu in equal shares. Kalu was unmarried and issueless and died in the year 1945 whereupon his estate was inherited by his surviving brother namely Tottu, who died in the year 1951. Tottu was survived by his sons namely Charan Singh and Ram Singh. Charan Singh died in the year 1987 and his brother Ram Singh, who was unmarried and issueless died a month after the death of Charan Singh. Thereafter, the estate of both Charan Singh and Ram Singh was inherited by the appellant-plaintiff, who became owner in possession of the suit land. The respondents-defendants who are daughters of Santu and their mother Gango, being widow of Santu, have no right, title or interest in the land belonging to Kalu son of Rijha, and therefore, mutation of inheritance sanctioned in their favour on 15.06.1994 is not binding on him. It was alleged that the appellantplaintiff would be sole male survivor, entitled to inherit the land of Kalu and not the respondents-defendants.

6. Upon notice, respondents-defendants appeared and filed their joint written statement, in which the averments made in the plaint were denied, apart from raising the plea of limitation and that suit was bad for non-joinder of necessary parties.

7. Replication was also filed to the said written statement.

8. From the pleadings of the parties, the following issues were framed by the court below on 03.04.1999:-

(1) Whether mutation No.1226 regarding the estate of Kalu and mutation No.1227 regarding the estate of Gangu sanctioned in favour of defendants are illegal, null and void?OPP

(2) Whether the plaintiff is entitled to the relief of declaration as prayed for?OPP

(3) Whether the plaintiff is entitled to relief of permanent injunction as prayed for?OPP

(4) Whether the suit is barred by limitation?OPD

(5) Whether the suit is not maintainable?OPD

(6) Relief.

9. During the course of trial, the appellant-plaintiff has examined Karnail Singh as PW1 and himself stepped into the witness box as PW2 and closed his evidence whereas, the respondents-defendants did not produce any evidence and closed the same.

10. Both the courts below rejected the claim of the appellantplaintiff, which are under challenge in this second appeal.

11. Learned counsel for the appellant-plaintiff argues that Rijha was common ancestor of the parties, who left behind three sons namely Tottu i.e. grand father of the appellant-plaintiff, Santu and Kalu. It is contended that said Santu had no male lineal descendant and Kalu, who was unmarried and issueless, died in the year 1945 and since the entire land was joint, therefore, the share of Kalu stood devolved upon Tottu. It is submitted that Tottu had two sons namely Charan Singh and Ram Singh and the appellant-plaintiff is the son of Charan Singh whereas