The burden of proof in civil cases and the applicability of the limitation period for filing a suit for declaration.

JUDGMENT :

H.S. Madaan, J.

1. Plaintiffs – Dharampal and Mahender Singh, both sons of Data Ram son of Baksha Ram, residents of village Mundayan, Tehsil and District Mohindergarh, had brought a suit against defendants – Pawan Kumar son of Jai Lal son of Raje Ram, his father Jai Lal as well as father's sister Savitri, one Dalip son of Data Ram son of Baksha Ram, all residents of the same village, seeking a declaration that plaintiffs are owners in possession of 50/3090 share in total land measuring 154 kanal 1 marla, comprised in Khewat No. 1 Khatoni No.1, situated at village Mundayan, Tehsil and District Mohindergarh and that judgment and decree dated 12.6.1993, passed in civil suit No. 436 dated 3.6.1993, titled as Pawan Kumar etc. vs. Dharampal etc. and mutation No. 492 dated 18.7.1994, sanctioned on basis thereof, are illegal, null and void and by way of consequential relief, the plaintiffs craved for grant of permanent injunction, restraining the defendants from encroaching upon any part of the suit land or alienating it in any manner.

2. As per version of the plaintiffs, they are owners in possession of the suit land on the basis of mutation No. 457 dated 28.10.1992, which is incorporated in the jamabandi for the year 1998-1999; the defendants in connivance with each other, while playing fraud and by way of impersonation got suffered impugned judgment and decree and thereafter got sanctioned impugned mutation on the basis thereof. As a matter of fact, plaintiffs had neither appeared in the Court, nor suffered the impugned judgment and decree.

3. On getting notice of the suit, only defendants No.1 and 2 appeared and filed a joint written statement, whereas defendants No.3 and 4 did not appear, despite service and were proceeded against ex parte.

4. In the joint written statement filed on behalf of defendants No. 1 and 2, they had raked up preliminary objections, contending that the plaintiffs had suppressed the material facts from the Court. Such defendants challenged maintainability of the suit, further contending that the suit was barred by limitation. On merits, the answering defendants denied that the plaintiffs were owners-in-possession of the suit land. They defended the impugned mutation as well as judgment and decree as legal and valid, the decree having been suffered by plaintiffs themselves. Refuting the remaining allegations, the answering defendants prayed for dismissal of the suit. No replication was filed by the plaintiffs.

5. From the pleadings of the parties, following issues were framed:-

1. Whether the plaintiff is owner in possession of 50/3090 share in the suit land and Civil Court judgment in the case titled as 'Pawan Kumar versus Dharampal etc.' decided on 12.6.1993 and mutation No. 492 dated 18.7.1994 is null and void as ground mentioned in the plaint? OPP

2. Whether the suit of the plaintiff is not maintainable? OPD

3. Whether the plaintiff has no locus standi to file the suit? OPD

4. Whether the plaintiff is estopped from filing the suit due to his act and conduct? OPD

5. Whether the defendant is entitled to special cost? OPD

6. Relief.

6. Both the parties led oral as well as documentary evidence in support of their respective claims. However, no evidence in rebuttal was led by the plaintiffs.

7. After hearing the arguments, the trial Court decided issue No. 1 against the plaintiffs, whereas issues No. 2 to 5 were decided against the defendants being not pressed.

8. As a cumulative effect of findings on issues, suit of the plaintiffs was dismissed with costs vide impugned judgment and decree dated 14.12.2010.

9. Feeling aggrieved, the plaintiffs had approached the court of District Judge, Narnaul, by way of filing an appeal. The appeal was assigned to Additional District Judge, Narnaul, who vide judgment and decree dated 16.8.2013, accepted the appeal, setting aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiffs with costs.

10. Now, it was turn of the defendants to feel agg