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PETITIONER: MAMO AND ANR.

       Vs.

RESPONDENT: COMMITTEE OF MANAGEMENT SHRI GURDWARA GAINB^AND ORS.

DATE OF JUDGMENT:       01/12/1999

BENCH: S.P.Kurdukar, Syed Shah Mohammed Quadri

JUDGMENT:

     SYED SHAH MOHAMMED QUAPRI, J.

     The  judgment  sna  decree  under  challenge  In  this appeal,  by special leave, were passed in Second Appeal  No. 1044  of  1378  by  the  High Court  of  Punjab  &  Haryana, Chandigarh,  on December 16, 1987.  The appeal arises out of the  suit  filed  by respondent No.l (referred  to  in  this judgment  as  ’the  plaintiff) against  the  appellants  and respondent  Nos.S to 4 who are the legal representatives  of one Pritam Singh (referred to in

     this  judgment  as "the defendants’) for  recovery  of possession  of  agricultural  land measuring 160  Kanals  16 Marlas  situated at village Salbehra tehsil district Patiala (hereinafter referred to as ’the suit land’ ).

     On  April 22, 1969, the suit was filed on the basis of title  of the plaintiff.  The suit land originally  belonged to  one Ram Singh who gifted the same in favour of Gurdawara Sahib  in 1951 while it was being held by Pritam Singh as  a mortgagee.   Later,  the mortgage was redeemed by Ram  Singh and  the suit land was mutated in the revenue records in the name of Gurdwara Sahib but it continued in the possession of Pritam  Singh.   After  declaration of Gurdwara  as  a  Sikh Gurdwara, Shiromani Gurdwara Prabanohak Committee, Amritsar, filed  asuit  against  the local Committee for  recovery  of possession of the suit land which was under "its control and management.   That suit was decreed on December 1, 1964.  In execution  of the decree actual possession of the suit  land could  not be taken from Pritam Singh, instead only symbolic possession  was  given  to   Shiromani  Gurdwara  Prabandhak Committee.   The  plaintiff  was   notified  by  the  Punjab Government  in 1965.  It then initiated proceedings  against Pritam  Singh  before  Assistant Collector,  1st  Grade  for recovery  of  rents.   On October 31, 1968,  the  claim  was dismissed   holding  that  Pritam   Singh  was  neither  the mortgagee  nor  the  tenant  of  the  suit  land.   Sometime thereafter  the said Pritam Singh died and the present  suit was brought against the defendants on April 22, 1969.

     The  suit  was resisted by the defendants denying  the ownership  of  the plaintiff, the knowledge of  the  earlier suit and taking of symbolic possession of the suit "and from the  said  Pritam Singh.  It was pleaded that the  suit  was barred  by limitation under Section 28 of the Sikh Gurdwaras Act,  1925  and  that  till his death Pritam  Singh  was  in

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possession  of  the suit land and thereafter they  had  been adverse  possession  thereof, so the title of plaintiff,  if any, extinguished.

     On  considering  the  entire avidence on  record,  the trial court held that under Section 28 of the Sikh Gurdwaras Act  the suit was beyond limitation and that the  defendants would  be deemed to be in adverse possession from 1952  ’and for  that  reason  also the suit was barred  by  limitation. Thus, the suit was dismissed on November 4,1974.  -.

     The  plaintiff carried the matter in appeal before the Additional  District  Judge, Patiala.  The  Appellate  Court framed  the following additional issue No.9-A and called for finding from the trial court.

     "9-A.    Whether  the  defendants   are   in   adverse possession  of the property in dispute and if so, since when and what is its effect?"

     The  trial  Court  returned the  finding  that;;-  the defendants  failed  to prove adverse possession of the  suit land.   That  finding  was accepted by the  First  Appellate Court and it was held that under the Limitation Act the suit was  not  barred.  However.  agreeing with the  trial  court that under Section 28 of the Sikh Gurdwaras Act the suit was barred,  the  first Appellate Court dismissed the appeal  on March 8, 1978,

     The plaintiff filed Second Appeal No.  1044 of 1378 in the  High  Court  of  Punjab  and  Haryana  challenging  the correctness  of  the  judgment  and   decree  of  the  First Appellate Court.  The High Court took the view that the suit was  based on title and not on disposseessior so it was  for the defendants to prove that they became owner of the suit 1 and  by  adverse  possession which they failed  to  do;   it expressed  agreement with the finding of the first Appellate Court  that the suit was not barred under the Limitation Act and  held  that  on the ground of limitation  prescribed  in Section  28  of the Sikh Gurdwaras Act, the plaintiff  could not  be non- suited.  The High Court thus allowed the Second appeal ana dscreed the suit on December 16, 1987.  It is

     against  that judgment and decree that this appeal  is filed.

     Mr.Ashok  K.Mahajan, learned counsel for the appellant ,  contended that under Section 29(2) of the Limitation Act, the  period  of limitation prescribed under the special  Act alone  would  apply and in view of the provision of  Section 28(1)  of  the Sikh Gurdwaras Act.  the suit ought  to  have been  filed  within  ninety days of the  notification  dated November  1,  1962 but it was filed on April 22, 1969 so  it was  clearly barred;  that the High Court wrongly held  that the  suit was within limitation under the Limitation Act and allowed the Second Appeal.

     Mr.   Hardev  Gingh,  learned senior counsel  for  the first  resoondent,  argued tnat the suit contemplated  under Section  28  of  the Sikh Gurdwaras Act  was  earlier  filed against  tne  local Committee and that the present suit  was filed  on  the  basis of the title, therefore, it  would  te governed  by the Limitation Act and that in view or findings of  the courts below the suit was riqhtly held to be  within limitation by the High Court.

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     On.   the con tentions raised at.  the hearing and  in the   written  submissions  of   the  learned  counsel,  the following question falls for consideration :  is the

     period  of  limitation specified in Section 28 of  the Sikh  Gurdwaras  Act  applicable to the suit  filed  by  the plaintiff  against  the defendants for recovery of the  suit land?

     Here, it will b@ useful to read Section 28 of the Sikh Gurdwaras Act, 1925 which is extracted hereunder:

     "28.   Suits for possession of undisputed property  on behalf of Notified Sikh Gurdwaras -

     (1)  When a notification has been published under  the provisions of sub-section (3) of Section 5 or of sub-section (3)  of Section 10, the committee of the gurdwara  concerned may bring a suit on behalf of the gurdwara for the

     after   the   date   of   the  publication   of   such notification."

     Section 28 deals with suits for recovery of possession of  undisputed  property  on  behalf of  the  notified  SiKh Gurdawaras.   Under  the scheme of the Sikh Gurdwaras Act  a consolidated  "list  of  the gurdwaras  and  the  properties thereof  ’was published and claims, if any, were entertained within  the prescribed time.  Where no claim was made  under sub-section  (2)  of .Section 5, a notification  was  issued under sub-section (.3) of Section 5 specifying that no claim was  made in respect of the right, title or interest in  any property  cautioned  .therein  and such  a  notification  is conclusive proof of the fact that no such claim was made in

     respect’  of  any  right,  title or  interest  in  the gurdwaras  and the properties specified in the notification. So  also is the position in respect of a notification issued under  sub-section  (3) of Section 10 regarding  -properties included  in  the list published under sub-section  (.3)  of Section   7.    The   properties   included  in   the   said notifications  are  treated as undisputed properties  under- Section 28 of the Sikh Gurdwaras Act..

     How,  a plain reading of the provision extracted above shows that sub- section (i) of Section 28 enables

     the  committee  of the gurdwara concerned to  bring  a suit  on  behalf of the gurdwara for the possession of  any. property,  a  proprietary title which has been specified  in such  notification subject to two conditions - (1) that  the gurdwara  .concerned is entitled to immediate possession  of the  property, in question and (2) it.  is not in possession thereof at the date of the publication of such notification. Sub-section  (2) of Section 28 has three, limbs:  the  first provides  that  such  a  suit shall  be  instituted  in  the principal  court  of.   original jurisdiction in  which  the property’  in question is situated;  the second prescribes a period  of  limitation of ninety days for bringing the  suit (commencing  from  the date of publication  of  notification referred  to  in  sub-section  (1)  or  from  the  date   of constitution of the .committee whichever is later "} and the ’thircy dec’la.rss the consequence of

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     failure  to  insfitute  such a suit  within  the  said Deriod  of ninety days :and mandates that no subsequent suit on  .’ beha’ifo^ the gurdwara for possession of the property shall  be instituted in any court except on.  the ground  of dispossession  of  ’the  gurdwara  after  the  date  of  the publication  (ration  of such notification.  For a  suit  of this nature no period of limitation is prescribed thereunder so "it will be governed by the Indian Limitation Act,

     In the instant case, there is no dispute that the suit land  is  a notified property.  The suit  contempated  under sub-section  (1) of Section 28 was brought within the period specified  in sub-section (2) against the local committee of the  gurdwara  which was managing the suit land.  That  suit was decreed.  In execution of the decree passed in that suit symbolic possession was obtained from Pritam Singh as he was not  a  party  to the suit.  We have  perused  the  original record.   The report of the bailiff in execution proceedings did  mention  that symbolic possession of the suit land  was given  to the decree holder.  No material was placed  before the Courts below by the defendants to show that Pritam Singh challenged  handing  over of symbolic possession or  claimed any right or title in the suit land in execution proceedings and  that  was  upheld.  It was only after ths  said  Pritam Singh  denied  the tenancy and the Assistant  Collector  1st grade  held  that  he  was neither the  mortagagee  nor  the tenant,  the plaintiff brought ths present suit against  the defendants  for  recovery  of possession of the  suit  land. This  suit is of the nature referred to in the third limb of sub-section  (2)  of Section 28, referred to above.  On  the premise  that  it  was  only after the  publication  of  the notification  that  the  cause  of   action  arose  to   the plaintiff,  it filed the suit for racovery of the suit-land. The first Appellate Court as

     well  as  the High Court held that the defendants  did not  perfect  their  title by adverse  possession  and  this finding remained unchallenged.

     From  the above discussion, it follows that the period of "limitation of ninety days mentioned in Section 28 1s not applicable  to the present suit, so it cannot, therefore, be said to be barred by limitation specified therein.  The suit falls within the third limb of sub-Section (2) of Section 28 to  which  period  of  limitation specified  in  the  Indian Limitation  Act applies.  The first Appellate Court and  the High  Court  have  held that the suit is  not  barred  under Limitation  Act.   The  High Court has,  therefore,  rightly decreed the suit of the plaintiff.  We find no illegality in the  judgment and decree under appeal.  The appeal falls and it  1s accordingly dismissed but in the circumstances of the case without, costs.