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CASE NO.:

Appeal (civil) 4426 of 1999

PETITIONER:

Saroop Singh

RESPONDENT:

Banto & Ors.

DATE OF JUDGMENT: 07/10/2005

BENCH:

S.B. Sinha & R.V. Raveendran

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The first defendant in the suit is in appeal before us. The plaintiff-

respondents filed a suit for possession and permanent injunction, being Suit

No.218 of 1994.

One Shadi admittedly was the owner of the suit property. He left

behind his widow, Indira Devi, who inherited the same. On or about

7.1.1955, by a deed of gift Indira Devi donated the suit property in favour of

the Appellant herein. One Harnama son of Jatti and Nathu son of Chetu (as

reversioners of said Shadi) filed a suit being Suit No.204 of 1957

challenging the legality of the said deed of gift, contending that said Indira

Devi had a limited life interest therein.

In terms of a judgment and decree dated 31.1.1958, the said suit was

decreed. The said Indira Devi is stated to have died subsequently. Her date

of death is not known. The Appellant \026 First Respondent contended that she

died at Haridwar in the year 1961. While filing the aforementioned suit on

7.7.1994, the Respondents raised a plea that as she was not heard for a

period of seven years prior thereto, by them and by others who would have

heard from her had she been alive, she was presumed to have been died .

The plaintiffs-Respondents, as regard the earlier suit, averred :

"One Harnama son of Jatti and one Nathu son of

Chetu challenged the gift deed mentioned above in the

year 1957 through a suit No.204 and sought declaration

to the effect that the gift deed in dispute shall not effect

their reversionary rights after the death of Inder Devi and

their suit was decreed on 31.1.58 by Sub-Judge, Ist Class,

Ambala. However, at the same time it was observed by

the Ld. Sub-Judge, that declaratory decree will ensue for

the benefit of daughters of Shadi deceased. Apart from

it under the customary law of Punjab Smt. Inder Devi

was not absolute owner on 7.,1.1955 i.e. the day of gift of

the suit properties, rather on the other hand she was only

having life interest in the suit properties and could not

gift away the same to defendant No.1 as Smt. Inder Devi

had already parted with the suit properties in favour of

defendant No.1 and could not become absolute owner

with the pasasing of Hindu Succession Act, 1956, rather

her life interest continued through in the hand of

defendant No.1."

In the said suit, the plaintiff-respondents prayed :

"It is, therefore, prayed that the suit of the

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plaintiffs for possession as owner of the land comprised

in Kh/kh. No.285/356, Khasra Nos. 194(8-4), 195(5-7),

2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7), 851(4-3),

850/2(0-8), 1621(0-15), and for symbolical possession as

owner of the land comprised in kh/kh No.285/337,

Khasra Nos.849(1-10), 850(3-7), situated within the

revenue limits of village Mullanpur Garib Dass and of

1/6 share of kh. No.2078(3-7) and of 1/6 share out of

Bara bounded as\005\005\005\005.and for permanent injunction

restraining the defendant No.1 from alienating the suit

properties to anybody may kindly be decreed in favour of

the plaintiff against the defendants with costs.

Any other relief this Ld. Court deeds fit may

kindly be granted to the plaintiff in the interest of

justice."

The statements made in paragraph 1 was traversed by the Appellant

herein in paragraph 3 of the written statement, contending :

"It is incorrect and denied. Smt. Inder Devi who had

been absolute owner of the suit properties and she made a

valid gift in favour of the answering defendant."

A plea that the suit is time-barred was also raised as an additional

plea.

The learned Trial Judge in view of the pleadings of the parties, int