Holding

The limitation period under Article 137 begins when the right to apply accrues, which in this case was when the decree‑holder’s partition suit in 1973 created a real threat of dispossession, not the earlier date of symbolic possession.

Summary

In execution of a pre-emption decree, the respondent was given actual possession of 135 kanals and symbolic possession of an additional 62 kanals 13 marlas, which was beyond the decree's terms. The appellants' father filed a declaratory suit in 1965, which was decided in his favour and affirmed in 1969, but no injunction was granted as he remained in actual possession of the disputed portion. In 1973 the respondent filed a partition suit claiming both the actual and the symbolically possessed land; the appellants then filed an objection petition under CPC §§47, 151, 152 seeking correction of the revenue record and restitution of the excess land. The respondent argued that the petition was barred by the three‑year limitation under Article 137 of the Limitation Act, 1963, counting from the 1963 delivery of symbolic possession. The High Court held the limitation began in 1963 and dismissed the petition, but the Supreme Court reversed, holding that the limitation starts when the right to apply accrues – i.e., when the respondent’s partition suit created a real threat of dispossession in 1973. Consequently, the Supreme Court allowed the appeal, set aside the High Court judgment and restored the Executing Court’s order.

Issues considered

When does the limitation period under Article 137 of the Limitation Act, 1963 commence for an application seeking correction of a mistaken symbolic possession recorded in execution proceedings?

Legislation cited

Code of Civil Procedures. 151, s. 152, s. 47
Limitation Act, 1963s. Article 137

Subjects

limitation periodArticle 137symbolic possessionexecution of decreerestitution of landcivil procedurepre-emption decreeright to apply

Judgment

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
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
B 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 of order dated 13.6.1963. An A
objection petition was submitted by the appellants in the Executing Court
on 22.7.1973 for rectifying the mistake and for restitution of the land for
which symbolical possession was wrongly recorded. The period of limita-
tion 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]
B

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 C
decree was recorded by way of symbolical possession in execution proceed-
ings. This fact is not disputed by the decree-holder. This error has been
rightly corrected by the Executing Court on an objection petitior. 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 D
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, (1955] 2 S.C.R. 938, E
relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2822 of
1979.

From the Judgment and Order dated 28.9.1978 of the Punjab and F
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 Respon-
dents. G
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 Higb Court dated September
28, 1978. The short controversy raised in the present case is regarding the H
16 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A 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 entitled to actual
B possession of 135 kanals of land and so far as the delivery of symbolical
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 declara-
c tory decree was affirmed in appeal by the Additional District Judge on
12.5.1969, but the relief of injunction was denied, as Ladha Singh was in
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, Karna! dated
D 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, bu\ also 62 kanals and 13 marlas on which he had been granted
symbolical possession in the execution proceedings in 1963. After the filing
E 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 of
F 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. fhe
Learned Sub-Judge First Class, Karna! held that the limitation will only
start to run when the respondent-decree-holder tried to interfere in the
G possession of the petitioners by filing the partillon proceedings in the year
1973. It was also held that the decree-holder had already obtained posses-
sion 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. H was thus, held that the possession of the land measuring 62
H kanals, 13 marlas of which symbolical possession was obtained was to be
BALWANT SINGH v. GURBACHAN SINGH (KASLIWAL. J.] 17

restored in favour of the objector - judgment-debtor. A
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 B
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
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 C
such allowed the revision and set aside the order of the Executing Court
and dismissed the application filed by the judgment-debtor.

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 D
Act 1963 shall govern the present case. Article 137 reads as under:

"137. Any other application for which Three years. When the
no period of limitation is provided right to apply
elsewhere in this Division. accrues."
E
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 circumstan-
ces of each case. In the present case in execution of the decree for
pre-emption on 13.6.1%3, the delivery of symbolical possession on an area F
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 declara-
tory 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 G
relief for injunction was granted in view of the fact that Ladha Singh was
in actual possession of the land. The decree-holder now in 1973 filed suit
for partition claiming land on the basis of order dated 13.6.1%3. The
appellants as such submitted an objection petition under Sections
47/1521151 of the Code of Civil Procedure in the Executing Court on H
"I

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18 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A 22.7.1973 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 year 1973. The High Court in
our view was not right in holding that the limitation in the facts and
B 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
C of the decree-holder in execution proceedings. This fact is not disputed by
the decree-holder even in written arguments submitted before this court.
This error has been rightly corrected by the Executing Court on an objec-
tion 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
D 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, [1955] 2 S.C.R. 938, in which
E
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 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.

F 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.

N.V.K. Appeal allowed.

(I
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