9911796707
TMI Blog1976 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... har Singh, filed a suit for possession by preemption of 52 kanals, 13 marlas out of the aforesaid area which was decreed in his favour on April 29, 1889 on payment of 671/-. The mutation in respect of the remainder of the land admeasuring 114 kanals and 17 marlas was attested in favour of Bhagwan Singh on May 4, 1890. Hamira did not retain the property which he secured by pre-emption and sold it back to Bhagwan Singh on September 20, 1890, with the result that Bhagwan Singh again became the owner of the entire land which was originally sold tO him by Chuhar Singh who died in 1896. On July 19, 1898, Jiwan, Bela, Jawahar and Jawala, descendants of Bharimian, another son of Har Lal, filed a representative suit for declaration to the effect that the aforesaid sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the aforesaid land was ancestral and the sale thereof was without 18--1458sc//76 consideration and legal necessity. A Division Bench of the Punjab Chief Court finally disposed of the said suit by judgment dated July 29, 1902 declaring that upon the death of Alla Singh, adopted son of Chuhar Singh, and extinction of his line, the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous suits. In these suits, the plaintiffs averted as follows with regard to the cause of action :- 5. After Alia, adopted son of Chuhar Singh, deceased, his son Kishan Singh became his heir and representative. Now the whereabouts of Kishan Singh aforesaid, have not been traceable for more than seven years. Since the 15th Aug., 1945, no information or intimation that he is alive has been received by any of his relative or any other concerned person. Hence. he is considered as dead and his suit is being filed. The line of Alia has become extinct. Under these circumstances, the plaintiffs being collaterals of Chuhar Singh, deceased vide the pedigree-table given above, are entitled to get possession of the laud of half share, the sale of which has been cancelled vide the decree granted by the Chief Court, subject to payment of ₹ 805/8/of their proportionate share. Hence, we have filed this suit. The parties are governed by the Zamindara custom in the matters of succession. 6. Prior to it, the plaintiffs had filed a suit for possession of this property (land) on the 18th December, 1945, in the Civil Court at Hoshiarpur, alleging that Kishan Singh, son of Alia who was the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefit of the entire body of reversioners and not exclusively for the benefit of Jawahar Singh and Bela Singh. On appeal, the District Judge upheld the dismissal of the suits adding that Hamira having successfully brought a suit for pre-emption in respect of a portion of the sale precluded not only himself but his successors as well from acquiring the property. In this view of the matter, he opined that Jagat Singh and Khazan Singh were not entitled to any share at all in the land. On further appeal, a Single Judge of the Punjab High Court decreed all the three suits by his judgment dated October 28, 1959, holding that Kishan Singh having been treated as alive by. the High Court when it passed the previous judgment dated August 3, 1951, the conclusion of the courts below that Kishan Singh had been dead seven years before the institution of the present suits could not be sustained. While computing the period of limitation, the Single Judge also excluded the time spent on the previous litigation from 1945 to 1951 under section 14(1) of the Limitation Act. It would be advantageous to reproduce the observations made in this behalf by the. Single Judge: Till 3rd of August, 1951, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Letters Patent Appeal to a Division Bench of the High Court which by its Judgment dated July 29, 1964 set aside the afore Said judgment and decree of the Single Judge holding that the Single Judge was in error in excluding the time spent on the previous litigation by the plaintiffs by applying section 14(1) of the Limitation Act. Relying on the decision of the Full Bench of the Lahore High Court in Bhai Jai Kishan Singh v. People Bank of Northern India, I.L.R. 1944 Lah. 136, the Division Bench held that the words. or other cause of a like nature occurring in section 14(1) of the Limitation Act had to be read ejusdem generis with the preceding words relating to defect of jurisdiction and that it was not possible to give the benefit of that provision to the plaintiffs as it could not be regarded that the court was unable to entertain the previous suits because of any defect of jurisdiction or other cause of a like nature merely because of the fact that the court came to the conclusion that the cause of action had not yet arisen. Aggrieved by this judgement, the plaintiffs have come up in appeal to this Court as already stated. Before adverting to the contentions raised bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting with due diligence and in good faith the previous suits in the court of first instance and in the courts of appeal which expressed their inability to entertain the suits on the ground that they were premature. There is no force in these contentions. It cannot be and has not been disputed that the present suits are governed by Article 2 of the Schedule annexed to the Punjab Limitation (Customs) Act, 1920 (Act 1 of 1920) which provides as follows :--- Description of suit Period of limitation Time from which period begins to run 2. A suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom-- (a) if no declaratory decree of the nature referred to in Article 1 is obtained. 6 years First :--If the alienation is by a registered deed the date of registration of such deed. Secondly--If the alienation is not by a registered deed- (a) if an entry regarding the alienation in the Register of Mutation has been attested b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are supported in this view by a catena of authorities. In Nepean v. Doe D. Knight (1837) 2 M W 894: 7L J Ex 335 Lord Denman delivering the judgment of the Court observed : The doctrine laid down is, that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years; that if it be. important to anyone to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of. Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances. This case was followed by a Division Bench of the Bombay High Court as far back as 1916 in Jayawant Jivanrao Deshpande v. Ramchandra Narayan Joshi (A.I.R. 1916 Bom. 300) A similar view was taken by the Privy Council in Lalchand Marwari v. Ramrup Gir (LIII I.A. 24: A.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom defect of jurisdiction, or other cause of a like nature, is unable to entertain it ............ It would be noticed that three important conditions have to be satisfied before the section can be pressed into service. These three conditions are--(1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action. Now the words or other cause of a like nature which follow the words defect of jurisdiction in the above quoted provision are very important. Their scope has to be determined according to the rule of ejusdem generis. According to that rule, they take their colour from the preceding words defect of jurisdiction which means that the defect must have been of an analogous character barring the court from entertaining the previous suit. A Full Bench of the Lahore High Court consisting of Hatties C.J., Abdur Rahman, J and Mahajan J. (as he then was) expressed a similar view in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er defect of the like character which could have precluded the court from entertaining them. It is also significant that the protection of section 14(1) of the Limitation Act was not claimed by the plaintiffs either in the Trial Court or in the first appellate court. Assuming, therefore, that Kishan Singh died within seven years of the institution of the suits. out of which the present appeals have arisen even then the protection of section 14(1) cannot be allowed to the appellants and. the suits have to be dismissed as time barred in terms of section 5 of the Punjab Limitation (Customs) Act, 1920, (Act 1 of 1920) which is reproduced below for facility of reference : 5. Dismissal of suits of the description specified in the act if instituted after the period of limitation herein prescribed has expired. Subject to the provisions contained in sections 4 to. 25 (inclusive) of the Indian Limitation Act 1903, and notwithstanding anything to the contrary contained in the first schedule of the said Act, every suit, of any description specified in the schedule annexed to this Act, instituted after the period of limitation prescribed therefor in the schedule shall be dismissed, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier litigation to prove the actual date of death of Kishan Singh who. had disappeared. Could they fail again for the same reason although the cause of action they set up is fresh and different and arose within three years before filing of the suits ? That is the real question we have to answer. Perhaps the way in which I look at the question and have stated it makes. an answer in the negative unavoidable. Hence, my inability, with great respect, to concur with another view put forward by my learned brother Jaswant Singh. I think that the learned Single Judge, dealing with the question of limitation in the High Court, had correctly summarised the. whole position and found as follows even without going into the question of burden of proof of date of death of Kishan Singh: All the three sets of plaintiffs have come up in second appeal to this Court and Mr. M.L. Sethi has addressed a very persuasive argument on the question of limitation which in reality is now the only substantial matter in dispute. He has pointedly brought to my notice the anomalous and baffling situation in which the plaintiffs have been placed. According to the judgment of the High Court of 3rd August, 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been established . It seems to me that the learned Single Judge had sufficiently indicated that the cause of action in the previous litigation was different from the one now before us inasmuch as the facts now proved indisputably, showing that Kishan Singh must be presumed to be dead, could not be and were not set up in the. earlier suits. In 1945, this cause of action had not accrued. As the learned Single Judge held, the effect of the judgment in the formed suits was that those suits were premature. This could not be said of the suits now before us in appeal. It is true that the learned Single Judge had thought that, alternatively, Section 14 of the Limitation Act could apply inasmuch as the causes of action in the previous litigation as well as in the present litigation were identical. In so far as the learned Single Judge postulated though for a limited purpose, an identity of causes of action of the previous and the present sets of suits, the assumption was inconsistent with his own emphatically expressed opinion revealing the difference in the causes of action. The plaints in the suits before us set out the history of the whole litigation and clearly set up a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of death. The result of the District Judge's failure was that the Single Judge of the Punjab High Court had to record essential findings of fact on this crucial question. of availability of the presumption of death. These indicated, beyond the shadow of doubt, that the plaintiffs were entitled to the benefit of the presumption laid down by Section 108 of the Evidence Act. This meant that, on new facts asserted and proved, Kishan Singh could be presumed to be dead when the suits now before us were instituted in 1952 and 1953. And, this presumption of the death of Kishan Singh having become available to the plaintiffs within three years of the suits and not before, no occasion for applying Section 14 Limitation Act could arise. The defendants, while pleading the bar of limitation to the suits had, quite inconsistently, also tried to suggest that Kishan Singh was either alive or must be assumed to be alive. The plaintiffs could not be expected, on their plea that, proof of date of death of Kishan Singh being absent, they were relying only on the presumption of death, to lead evidence Of any date of death. All that could be reasonably expected from them was to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be proved for the success of the subsequent suit, the causes of action would differ. It did not matter if there is a certain common ground to be covered by the evidence in both sets of cases. This test would also be satisfied in cases before us now because the additional facts show that Kishan Singh had not been heard of by those who would have otherwise heard of him in the course of seven years. This evidence could not be led at all in the previous suits as they were filed very soon after the alleged date of death of Kishan Singh. If causes of action differ from suit to suit, the accrual of the cause action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property. Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only. Facts denoting their accrual must differ from case to case. Of course, proof of date of actual death is conclusive. But, where the basis of the right to sue is presumption of death the date of accrual of the right is the date on which that presumption matures. I have set out above the reasoning which appeals t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action, arising within the period of limitation, would , ensure to the benefit of the plaintiffs. It seems to me that the lines on which the case of India Electric Works (supra) was decided enable us to correctly decide whether a new cause of action had accrued in favour of the plaintiffs in the suits before us, which were filed within three years of the accrual of this cause of action, as well as on the question whether, if this be not the correct position, Section 14(2) of the Limitation Act could be invoked by plaintiffs. Indeed, the view accepted by the three Judges of this Court, that it is enough to institute proceedings within the prescribed period from the accrual of the fresh cause of action, appears to me to provide the common view we cannot reject. This view would apply if we agree, as my learned brother Jaswant Singh does, that a cause of action had arisen here. In State of Madras v.V.P. Agencies Anr.,( A.I.R. 1960 S.C. 1309 at 1310.) Das, C..J., referred to various expositions of the meanings of the term cause of action , including that by Lord Watson, in Mst. Chand Kour v. Partap Singh,(3) where we find (at p. 1310): Now the cause of action, has no relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, the identity of the relief asked for in the earlier and later suits does not matter. It also does not matter that the defendant in both sets of suits have. attempted to suggest that Kishan Singh is still alive. It iS they who had asserted that the plaintiffs' rights were extinguished by the operation of the law of limitation. Therefore, strictly speaking, it appears to me that it was for the defendants to establish, if they could, that Kishan Singh was either alive or had died more than three years before the 'suits were filed. There is no proof of either of these here, The presumption under Section 107 of the Evidence Act could not. come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under Section 108 of the Evidence Act. There seemed to be irrefutable evidence that, after a letter of Kishan Singh, received at Ahmedabad on 5th August, 1945, nothing had been beard or was known about him. Hence, the plaintiffs relied on the presumption under Section 108 Evidence Act 'because 'they could not prove the actual date of death which had a bearing only on the bar of limitation set up by the defendants. As has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used must be presumed to be deliberate. I do not think that we can substitute the date of death for the date of accrual of the right to sue'. In the Limitation Act, as well as in other statutes, the accrual when intended to be tied to the date of some event, is specified as the date of that event. Here, it is not so. We cannot, without an obvious inconsistency with our findings that the causes of action in the previous and subsequent limitations were different, hold that the date of accrual in both sets of suits is one and the same, that is to say, the actual date of death. Such a view could, I think, be contrary also to the plaintiffs' pleading where the difference in the causes of action must be found. The solution to the difficulty before us emerges automatically if we answer two questions correctly: What was the difference between the two causes of action ? What is the effect of that difference upon the date of accrual of the subsequent and different cause of action ? It is well established that it is not in every suit for possession that the commencement of date dispossession must be established by the plaintiff. It is only in a suit for possession, based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and proved that this period of seven years had elapsed. According to them, their cause of action matured within three years of their suits. Even if, by some stretch of imagination, the concept of adverse possession of the defendants were to be introduced in this litigation, when neither the plaintiffs nor the defendants have pleaded it, it is abundantly clear that the legal position is that the possession of defendants could not conceivably be adverse to Kishan Singh's reversioners even before Kishan Singh could be presumed to be dead. Indeed, the defendants had themselves set up the plea that he must be still deemed to be alive. On these pleadings, the plaintiff could only be required to prove Kishan Singh's death but not the date of his death or the date of the plaintiff's dispossession which can occur only after a previous possession of the plaintiffs followed by the adverse possession of the defendants. Neither cases dealing with recovery of possession on the plaintiff's allegation of his own dispossession nor those where proof of date of death was a necessary part of either the cause of action or the plaintiff's statutory duty, for showing that the suit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich we could follow. In my opinion, the facts as well as the applicable provisions of law in the case before us are very different from those in Nepean's case (supra) which could, in any event, not be more than an authority of some persuasive value in this Court. In Jaswant livanrao Deshpande v. Ramchandra Narayan Joshi,(1) in a suit governed by Article 141 Limitation Act, it was held (at p. 301): Art. 141 Lira. Act, is merely an extension of Art. 140, with special reference to persons succeeding to an estate as reversioners upon the cessation of the peculiar estate of a Hindu widow. But the plaintiff's case under each article rests upon the same principle. The doctrine of non-adverse possession does not obtain in regard to such suits and the plaintiff suing in ejectment must prove, whether it be that he sues as a remainderman in the English sense or as a reversioner in the Hindu sense, that he sues within 12 years of the (1) A.I.R. 1916 Bom. 300 @ estate failing into possession, and that onus is in no way removed by any presumption which can be drawn according to the terms of S. 108,Evidence Act. The exact point for the purpose of Art. 140, and also, in our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia, on Punjab v. Natha,( A.I.R. 1931 Lah. 582 (F.B.)) which, in my opinion, was wrongly decided. Venkateswarlu's case (supra), however. arose on facts and circumstances in which the proof of date of death was necessary to determine as the question was whether a legatee had survived the testator. In such a case, proof of date of death is necessarily a part of the cause of action. In Ram Kali Ors. v. Narain Singh,(1) it was held that: (at s. 299-300): Before the plaintiff can succeed in approving himself to be the nearest reversionary heir, he must prove in sequence that Harpal Singh and after him Pahalwan Singh and after him Sheo Ghulam Singh and after him Kali Singh predeceased Ram Lal. The exact date of Ram Lal's death is important from the point of view of the success of the plaintiff's case, because it was only then that succession opened out, and it is only by proving the exact date of Ram Lal's death that the plaintiff can succeed in establishing his claim to be the nearest reversionary heir of Ram Lal . This, in my opinion, is the type of case in which the date of death is an essential part of the plaintiff's cause of action so that the fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seven years lies with the party alleging death at such particular period . It is neither a part of the case of any plaintiff before us nor necessary for the success of his case to prove that Kishan Singh died on a particular date or that. Kishan Singh died before or after somebody else. I, therefore, fail to see, with great respect, how the plaintiffs can be saddled with the responsibility to prove this date in the suits now before us. It was nobody's case that Kishan Singh died long ago and that the defendants have been in open hostile adverse possession against Kishan Singh and whoever may be his heirs or feversioners. In the earliest litigation, the defendants claimed as transferees of the rights of Kishan Singh. The declaratory decree restricted their rights to the life time of Kishan Singh. Their rights could not extend beyond the point of time when Kishan Singh must be presumed to be dead. That is the farthest limit of their rights. They knew this after the litigation which terminated in 1902. That is why, in the suit's now before us, they took up the alternative case, though rather obliquely, that Kishan Singh must be or at least deemed to be alive, so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to predict the outcome of a suit depending largely on oral evidence. The defect revealed by the evidence in he earlier litigation was that the suits did not lie at all as they were premature . This was, in my opinion, a defect reasonably comparable to want of jurisdiction. I, however, find it very difficult to attempt to apply Section 14 Limitation Act to the cases before us for two reasons. Firstly, there has to be a period of time, shown to have elapsed since the expiry of the period of limitation, which could be excluded under section 14. If the cause of action does not accrue at all there is no point of time from which any period of limitation could run. Hence, if no cause of action could accrue at all unless and until the date of actual death of Kishan Singh is established, there could be no commencement of a period of limitation. If that be the correct position, where is the question of excluding any time in computing it ? The only possible point from which limitation could start running here is the date on which seven years expired from the date on which Kishan Singh was last heard of. This was within three years before filing of the suits as pointed out above. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat point, on the findings of every Court, including this Court, could not be the date of Kishan Singh's death, which is unknown, the suits could not possibly be dismissed on that ground. They could conceivably be dismissed on the finding that the date of death of Kishan Singh, being an indispensable part of the cause of action, the plaints do not disclose a cause of action at all, and, therefore, should have been rejected. But, the defendants have not taken any such plea directly. Nor was this argued on their behalf. For the reasons given above, I regret to have to respectfully differ from the view adopted by my learned brother Jaswant Singh. I am unable to accept an interpretation of the relevant provision prescribing limitation which would confine the accrual of a cause of action only to cases of direct proof of death, on a particular date. Such a view implies that suits based on a presumption of death are devoid a cause of action which could support a suit by a reversioner. I do not think that the provision we have to interpret was meant to define or restrict a right of suit or a cause of action in this fashion at all. The object of a statute of repose is only to extin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
