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PETITIONER: BALWANT SINGH AND ORS.

       Vs.

RESPONDENT: GURBACHAN SINGH AND ORS.

DATE OF JUDGMENT15/10/1992

BENCH: [KULDIP SINGH AND N.M. KASLIWAL, JJ.]

ACT: Limitation Act, 1963: Article 137-Excess  land beyond terms of decree-In execution proceedings  by   mistake  recorded  by  way  of  symbolical possession-Application   for    rectifying    mistake    and restitution-Date of commencement of limitation.

HEADNOTE: In execution  of decree for pre-emption obtained by the respondent he  was delivered  actual possession  as well  as symbolic possession  of lands.  According to the decree, the respondent was only entitle to actual possession, and so far as the delivery of symbolic possession was concerned, it was beyond the terms of the decree. The father  of the appellants having come to know about the aforesaid  mistake, filed a suit for declaration and for permanent injunction  in the year 1965, which was decreed in his favour,  and the said declaratory decree was affirmed in appeal by  the Additional  District Judge  on 12.5.1969, but the relief  of injunction  was denied  as he  was in  actual possession of the portion over which symbolic possession was recorded in execution proceedings. This order became final. The respondent in the appeal filed a suit for partition in the year 1973 claiming not only the lands in which he had obtained actual  physical possession,  but also the lands on which he  was granted  symbolic possession  in the execution proceedings in  1963. After  the  filing  of  the  suit  for partition, the  appellants filed an objection petition under sections 47,151  and 152  of the  Code  of  Civil  Procedure praying that  necessary correction  may be  made in  revenue record by restitution of excessive area wrongly delivered to the decree-holder.  The respondent  decree-holder  contested the application  and one  of the  ground raised was that the objection petition  was barred by limitation as the same was that the  objection petition was barred by limitation as the same was  not filed  within three  years of  the order dated 13.6.1963, under  which symbolic possession was given to the decree-holder. The Sub-Judge  held that the limitation will only start to run  when the respondent-decree-holder tried to interfere in the possession of the petitioners by filing the partition proceedings in  the year  1973. It  was also  held that  the decree-holder had already obtained possession of the land to which he  was entitled  under the  decree  and  he  was  not entitled to  retain the  possession of the excessive area of which only symbolic possession was given to him. Aggrieved by  the aforesaid  order,  the  decree-holder

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filed a  revision before  the High Court, and a Single Judge allowed the  revision on  the ground  that the limitation in case of  such applications was three years, and the symbolic possession  having  been  delivered  on  June  13,1963,  the application filed on July 22,1973 was barred by time. It was further held,  that actual  possession of the land was never delivered by  the Executing Court and it was only symbolical possession which  was delivered,  and  for  the  purpose  of restitution, if  at all,  there was  a necessity to move the application, the  same could be done within three years from the date  of the  delivery of the symbolical possession. The order of  the Executing Court was accordingly set aside, and the application filed by the judgment-debtor was dismissed. In the  appeal to this Court, on the question regarding the date  from which the period of limitation shall commence under Article 137 of the Limitation Act, 1963. Allowing the appeal, this Court, HELD :  The period  of limitation  under Article 137 is three years  which commences from the date when the right to apply accrues. The question when such right to apply accrues will depend  on the  facts and  circumstances of  each case. [17-E] In the  instant case,  in execution  of the  decree for pre-emption on 13.6.1963 the delivery of symbolic possession on an  area measuring  62  canals,  13  marlas  was  wrongly recorded. The  father of  the appellants continued to remain in possession  over the  aforesaid land  and he also filed a declaratory suit  challenging the  recording of the delivery of symbolical possession in favour of the decree-holder. The suit was  decreed in  his favour  by  the  trial  court  and confirmed by  the Additional  District Judge  by order dated 12.5.1969. In  1973 the  decree-holder filed  the  suit  for partition claiming  the land  on the  basis of  order  dated 13.6.1963.  An  objection  petition  was  submitted  by  the appellants in the Executing Court on 22.7.1973 of rectifying the mistake  and for  restitution  of  the  land  for  which symbolical possession  was wrongly  recorded. The  period of limitation under  Article 137  would therefore commence when actual threat  of dispossession commenced i.e. on taking the proceedings for partition in the year 1973. [17-F-H, 18-A] The High  Court was  not  right  in  holding  that  the limitation  would   commence  from   13.6.1963  and  not  in 1973.[18-B] This is  a case where by mistake excess land beyond the terms of  the decree  was  recorded  by  way  of  symbolical possession  in  execution  proceedings.  This  fact  is  not disputed by  the decree-holder.  This error has been rightly corrected by  the Executing  Court on  an objection petition filed under  section 147 of the Code of Civil Procedure read with section  151. The  judgment in the declaratory suit has also become  final and  binding on  the decree-holder. It is not considered  proper in the interest of justice to prolong this litigation  by remanding  the matter to the High Court. The judgment  of the High Court dated 28.9.1978 is therefore set aside  and the  judgment of  the Executing  Court  dated 19.2.1977 is restored. [18-C-D-F] Merla Ramanna v. Nallaparaju and Others,[1995] 2 S.C.R. 938, relied on. CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2822 of 1979.

JUDGMENT:      from the  Judgment and  Order dated  28.9.1978  of  the

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Punjab and  Haryana High  Court in Civil Revision No. 480 of 1977.      E.C. Agrawala for the Appellants.      Bishambar Lal  Khanna and  Ms. Geetanjali Mohan for the Respondents. The Judgment of the Court was delivered by      KASLIWAL, J.  This appeal  by grant of special leave is directed against the judgment of Punjab & Haryana High Court dated September 28,1978. The short controversy raised in the present case  is regarding the date from which the period of limitation  shall   commence  under   Article  137   of  the Limitation  Act,   1963.  According   to  the   facts  found established  on   record,  Grubachan   Singh-respondent  was delivered actual  possession  of  135  Kanals  of  land  and symbolical possession  of  62  kanals,  13  marlas  on  June 13,1963 in  execution of  decree for pre-emption obtained by him. According  to the  decree,  Gurbachan  Singh  was  only entitle to  actual possession  was concerned,  it was beyond the  terms  of  the  decree.  Ladha  Singh,  father  of  the appellants having come to know about the said mistake, filed a suit  for declaration  and for permanent injunction in the year 1965.  The said  suit was  decreed in  favour of  Ladha Singh and the said declaratory decree was affirmed in appeal by the  Additional District  on  actual  possession  of  the portion over  which symbolical  possession was  recorded  in execution  proceedings.   It  remains  undisputed  that  the aforesaid judgment  given by  the Additional District Judge, Karnal dated 12.5.1969 became final.      Gurbachan Singh  has now  filed a suit for partition in the year  1973 claiming  not only 135 kanals on which he had obtained actual  physical possession, but also 62 Kanals and 13 marlas on which he had been granted symbolical possession in the  execution proceedings  in 1963.  After the filing of the suit  for partition,  the appellants  filed an objection petition under  Sections 47/152/151  of the  code  of  Civil Procedure Praying  that necessary  correction may be made in revenue record  by restitution  of   excessive area  wrongly delivered to the decree-holder. The respondent-decree-holder contested  the  above  application.  Apart  from  the  other objections, one  the ground  raised was  that the  objection petition was  barred by limitation as the same was not filed within three years of the order  dated 13.6.1963 under which the symbolical  possession was  given to  the decree holder. The Learned  Sub-Judge First  Class, Karnal  held  that  the limitation will  only start  to  run  when  the  respondent- decree-holder tried  to interfere  in the  possession of the petitioners by  filing the partition proceedings in the year 1973. It  was also  held that  the decree-holder had already obtained possession   of  the area  measuring 135  Kanals to which he  was entitled  under the  decree  and  he  was  not entitled to  retain the  possession of the excessive area of 62 Kanals, 13 marlas of which only symbolical possession was given to  him. It  was thus, held that the possession of the land measuring  62 Kanals,  13 marlas  of  which  symbolical possession was  obtained was to be restored in favour of the objector-judgment-debtor.      Aggrieved against  the  aforesaid  order,  the  decree- holder filed  a revision  before  the  High  Court.  Learned Single Judge  allowed the  revision on  the ground  that the limitation in  case of  such applications is three years and as the  symbolical possession  had been  delivered  on  June 13,1963, the  present application  filed on July 22,1973 was barred by  time. The  High Court  further held  that  actual possession of  the land was never delivered by the Executing Court and  it  was  only  symbolical  possession  which  was

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delivered. Thus,  for the purpose of restitution, if at all, there was  a necessity  to move  the application,  the  same could be  done within  three years  from  the  date  of  the delivery   of the  symbolical possession. The High Court, as such allowed  the revision  and set  aside the  order of the Executing Court  and dismissed  the application filed by the judgment-debtor. 3    We have  heard Learned Counsel for the parties and have gone through  the record.  It is not in dispute that Article 137 of  the Limitation  Act 1963  shall govern  the  present case. Article 137 reads as under: table ====== "137. Any other application for which  Three years. When the no period of limitation is provided right to apply elsewhere in this Division. accrues." table =====      The period  of limitation  under Article  137 is  three years which  commences from the date when the right to apply accrues. The  question when such right to apply accrues will depend on  the facts  and circumstances of each case. In the present case  in execution  of the decree for pre-emption on 13.6.1963, the  delivery of symbolical possession on an area measuring 62  Kanals, 13  marlas was wrongly recorded. Ladha Singh, father  of the  appellants  continued  to  remain  in possession  over  the  aforesaid  land  and  he  also  filed declaratory suit  challenging the  recording of the delivery of symbolical possession in favour of the decree-holder. The Said declaratory  suit was  decreed in favour of Ladha Singh by the  trial court  and  was  affirmed  by  the  Additional District Judge  by  order  dated  12.5.1969.  No  in  actual possession of  the land. The decree-holder now in 1973 filed suit for partition claiming land on the basis of order dated 13.6.1963. The  appellants as  such submitted  an  objection petition under  Sections appellants  as  such  submitted  an objection petition  under Sections 47/152/151 of the Code of Civil Procedure  in the  Executing  Court  on  22.71973  for rectifying the  mistake and  for restitution of the land for which symbolical  possession was  wrongly recorded.  In  the aforesaid admitted facts, we are of the view that the period of limitation  under Article  137 would commence when actual threat  of   dispossession  commenced  i.e.  on  taking  the proceedings for partition in the 1973. The High Court in our view was  not right  in holding  that the  limitation in the facts and  circumstances of  the present case would commence from 13.6.1963 and not in 1973.      Even otherwise,  it is  a case  where by mistake excess land beyond  the terms  of the decree was recorded by way of symbolical possession in favour of the Decree-holder even in written arguments  submitted before  this court.  This error has been  rightly corrected  by the  Executing Court  on  an objection petition  filed under  Section 47  of the  Code of Civil Procedure  read with  Section 151. Apart from that the judgment in  the declaratory  suit filed  by Ladha  singh in this regard has also become final and binding on the decree- holder. We,  therefore, do  not consider  it proper  in  the interest of  justice to prolong this litigation by remanding the matter to the High Court as prayed in the alternative on behalf of the respondents.      We find support in the view taken by us on the decision of this  Court in  Merla Ramanna  v. Nallaparaju and others, [1995]  2   S.C.R.  938,  in  which  it  was  held  that  an application by  a party to the suit to recover possession of properties which  had been  taken delivery  of under  a void

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execution  sale   would  be   in  time   under  Article  181 (corresponding Article  137 of the Limitation Act, 1963), if it was filed within three years of dispossession.      In the  result, we  allow this  appeal, set  aside  the judgment of  the High  Court dated 28.9.1978 and restore the judgment of  the Executing  Court dated  19.2.1977. No order as to costs in the facts and circumstances of the case.