JUDGMENT
Rajesh Bindal, J.
1. Defendant No. 1 is in second appeal before this Court against the concurrent findings of fact by both the Courts below where suit for declaration filed by plaintiff Lila Krishan, who died during the pendency of the suit, seeking declaration to the effect that mutation entered in favour of defendant No. 1 was not legally sustainable.
2. Briefly the facts, as noticed in the judgments of the Courts below, are that Kewal Ram, who died in 1950, had a wife, namely Gobindi Bai, who died during partition. Thereafter, he entered into second marriage with Veeran Bai. From the first marriage with Gobindi Bai, there were three issues, namely, Lila Krishan, Jhangi Ram and Vasandhi Bai whereas from the second wife Veeran Bai, there were three issues, namely, Narain Dass, Parmeshwari Devi and Kishani Bai. After the death of Kewal Ram, his property was inherited by his three sons, namely, Lila Krishan, Jhangi Ram and Narain Dass. Jhangi Ram was issue less. After his death, his entire property was inherited by his widow Sita Bai. However, she died intestate. Her property reverted back to other legal heirs and it is the starting point of the dispute in the present litigation.
3. After the death of Sita Bai, mutation was entered on July 6, 1982 in favour of brothers and sisters of deceased Jhangi Ram in equal share i.e. 1/5% each. It is this mutation, which is sought to be challenged by plaintiff Lila Krishan alleging that to be illegal and contrary to the law of inheritance. The claim was that after the death of Jhangi Ram, the property will devolve upon the respondent/plaintiff and his sister Vasandhi Bai, who were born out to Gobindi Bai alongwith deceased Jhangi Ram. Both the courts below accepted the claim made by plaintiff Lila Krishan and decreed the suit.
4. Before this Court, learned Counsel for the appellant made two fold submissions. Firstly, the suit filed by the plaintiff was time barred and secondly that admission, even if made by the appellant/defendant No. 1, in earlier suit filed by him to the effect that Kewal Ram entered into two marriages could very well be explained by him and that admission should not have been taken against him. He submitted that earlier litigation filed by him was at the instance of plaintiff and now the same is being taken against him. As regards the plea of limitation, he submitted that when the mutation was entered presence of plaintiff is shown, which means that he had no objection to the mutation being sanctioned and accordingly, he had no locus standi to file the present suit belatedly.
5. On the other hand, learned senior counsel appearing for the respondents submitted that in terms of settled position of law as has even been referred to by the Court below, the limitation to challenge the mutation, which does not confer any right, start from the date the actual physical possession of a person is threatened. In the present case, it was admittedly found that plaintiff was in possession of the property and his possession was sought to be threatened when a suit for partition was filed by Parmeshwari Devi in June, 1998 and immediately thereafter he filed the present suit challenging the mutation. As far as other plea raised by learned Counsel for the appellant, it was submitted that merely because in a crowd collected at the time of sanctioning of mutation, presence of plaintiff was recorded without there being his signature/thumb mark showing his actual physical presence, no adverse inference can be drawn there from. Prayer made is for dismissal of appeal. Learned Counsel relied upon the judgments in Rawat v. State of Haryana , Roop Ram (deceased) through his LRs. v. Mai Sukh and Vinay Pal Singh v. Vijay Kumar Singh 3 (1999-1) 118 P.L.R. 421.
6. Having heard learned Counsel for the parties, I find merit in the contention raised by learned senior counsel for the respondents. As far as limitation is concerned, the plea raised by him is fully supported by the judgments referred to above, in which in unequivocal term it is held that the limitation to challenge a mutation starts from the date the possession of a person is threatened and in the present case, plaintiff continued in possession inspite of sanction of mutation on June 6, 1982 and it was only when a suit for partition was filed in June, 1988 that his possession was sought to the threatened, which gave a cause of action to plaintiff for filing the suit. Accordingly, the findings recorded by the Courts below on that account are strictly in conformity with law. As regards the other issue raised by the appellant, it is found on record that it is hot only the admission made by appellant regarding Kewal Ram having entered into two marriage rather there was other evidence also in the form of statements of PW-1 Prabhu Dayal and PW-3 Ram Chander, who were well acquainted with the family of Kewal Ram, who duly proved the factum of two marriages having been conducted by Kewal Ram. Accordingly, even on that account, learned Counsel appearing for the appellant has not been able to make out a case.
For the reasons stated above, I do not find any merit in the present appeal and the same is dismissed.