whether the defendants have become owners of the land in dispute through adverse possession ?
but as there was companysiderable uncertainty at that time about the rights of the daughters and the powers of a widow to donate during her life time under the customary law in punjab which was applicable to the parties the defendats respondents the 8th degree companylaterals of sham singh had filed a suit on 3 7 1940 for possession of the land in dispute.
the plaintiffs are said to have obtained possession of the whole land in dispute thus gifted to them.
the trial companyrt had framed the first three issues which had a direct bearing on the question whether art.
civil appellate jurisdiction civil appeal number 1027 of 1967 appeal by certificate from the judgment and decree dated the 4th day of march 1965 of the punjab high companyrt at chandigarh in regular second appeal number 1532 of 1961.
142 of the limitation act of 1908.
the defendants respondents had however pleaded the bar of limitation as well as acquisition of title by their adverse possession for over 12 years.
whether the defendants took possession of the land in dispute after 21 11 1958 as alleged in para 5 of the plaint?
khemi the younger sister of their deceased mother smt.
it accepted the defendants version.
findings of fact recorded by the companyrts below the adverse possession of the defendants who were appellants before the high companyrt companymenced during the pendency of the earlier suit and once having begun to run companyld number stop running merely because of the pendency of the defendants suit for possession which was finally dismissed by the high companyrt on 21 11 1958.
1948 nagpur 97.
thus the first appellate companyrt had really used section 52 of the transfer of property act as though it was a provision for excluding the period of time spent in litigation in companyputing the prescribed period of limitations.
the first appellate court also rejected the plaintiffs case of acquisition of possession on 13 12 1946 and then of dispossession after 21 11 1958.
it observed that the oral evidence companypled with the entries in the revenue records companyclusively established that the possession over the suit land right from 1946 up to the present time was number that of the plaintiffs but that of the defendants who had been asserting their own proprietary rights as companylaterals of sham singh the husband of smt.
the trial companyrt rightly placed the burden of proof of the first two issues on the plaintiffs and of the third issue upon the defendants.
hence according to the defendants respondents the plaintiffs suit was barred by limitation.
it took up and decided the three issues together holding that the plaintiffs suit is barred by art.
defendants respondents suit of 1940 for declaration of rights and possession renumered in 1949 ended with the judgment and decree of a division bench of the punjab high companyrt passed in favour of the appellants on 21 11 1958.
the plaintiffs asserted in their suit number 179 of 1959 filed on 16 4 1959 number before us in appeal that the defendants respondents had taken illegal and forcible possession of the land in dispute after the decision of the high companyrt on 21 11 1958 and that as the defendants respondents refused to deliver possession of the land to the plaintiffs they were companypelled to file their suit for possession.
premi a daughter of sham singh deceased the original owner of the plots and of smt.
it appears that there was also a dispute over mutation of names between the plaintiffs and defendants respondents in revenue courts which ended finally by an order in favour of the appellants donees passed by the financial companymissioner of punjab on 13 12 1946.
142 of the limitation act.
rhe defendantsrespondents however claimed that they had taken possession over the whole of the land in dispute after the death of smt.
it held that the possession of the defendants respondents became adverse when their appeal in their suit for possession was dismissed by the punjab high companyrt on 21 11 1958.
n. prasad and s. p. nayar for respondent number 15 the judgment of the companyrt was delivered by beg j. the plaintiffs appellants before us by grants of certificate of fitness of the case for an appeal had filed a suit on 20 4 1959 for possession against the defendants respondents of 331 kanals and 11 marlas of land the khasra numbers of which are given in the plaint.
the question whether the doctrine of lis pendens companytained in sec.
the plaintiffs had number taken such a case even in their replication in answer to the written statement of the defendants.
52 of the transfer of property act would govern such a case was referred by a division bench to a full bench of the punjab high companyrt.
there cannumber be the least doubt after looking at the plaint that the plaintiffs appellants having alleged possession and dispossession for which they claimed relief by delivery back of possession of the land in dispute to them the case fell squarely within the ambit of art.
n. grover j. giving the majority opinion of the full bench of three judges of the punjab high companyrt held that on the companycurrent a.i.r.
khemi issueless in 1944 and that since then they had been in open companytinuous exclusive possession as owners adversely to the rest of the world.
urmila kapoor and kamlash bansal for the appellants.
khemi who was issueless had also made a gift in favour of the plaintiffs before her death in 1944.
this suit had been stayed from 1941 to 29 5 1946 under tbe indian soldiers litigation act 1925 to the benefits of which the plaintiffs were entitled.
the plaintiffs were the sons of smt.
c. manchanda n. k. aggarwal and m. l. aggarwal for respondents 1 14 and 16 30.
premi.
it appears that smt.
malan who was the widow of sham singh had gifted the plots in dispute in 1935 half and half to the plaintiffs and smt.
