LexBALWANT SINGH AND ORS. versus GURBACHAN SINGH AND ORS.
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BALWANT SINGH AND ORS. A v. GURBACHAN SINGH AND ORS. OCTOBER 15, 1992 [KULDIP SINGH AND N.M. KASLIWAL, JJ.] B Limitation Ac~ 1963 : Anicle 137-Excess land beyond terms of decree--ln execution proceed- ings by mistake recorded by way of symbolical possession-Application for C rectifying mistake and restitution-Date of commencement of limitation. ' In execution of a 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 entitled to actual posses- sion, and so far as the delivery of symbolic possession was concerned, it D 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 injunc- tion in the year 1965, which was decreed in his favour, and the said declaratory decree was affirmed in appeal by the Additional District Judge E 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 F 1973 claiming not only the lands in which he had obtained actual physical possession, but also the lands on which be was granted symbolic posses- sion 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 G may be made in revenue record by restitution of excessive area wrongly delivered to the decree-bolder. The respondent-decree-bolder contested the application and one of 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 symbolic possession was given to the decree-holder. H n 14 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R. A The Sub-Judge held that the limitation will only start to run when B 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 excessil'e area of which only symbolic possession was given to him. Aggrieved by the aforesaid order, the decree-holder 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, C 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 D application, the same could be done within three years from the date of the delivery of the symbolieal possession. The order of the Executing Court was accordingly set aside, and the application filed by the judg- ment-debtor was dismissed. In the appeal to this Court, on the question regarding the date from E 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 F 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. 117-E] In the instant case, in execution of the decree for pre-emption on G 13.6.1963 the delivery of symbolic possession on an area measuring 62 kanals, 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 sym· bolical possession in favour of the decree-holder. The suit was decreed in his favour by the trial court and confirmed by the Additional District H Judge by order dated 12.5.1969. In 1973 the decree-holder filed the suit BAL WANT SINGH v. GURBACHAN SINGH [KASLIWAL J.J 15 for partition claiming the land on the basis o
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