# OORDIT SINGH AND ORS. ETC v. MUNSHA SINGH AND ORS. ETC

- **Citation:** [1977] 2 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1976-11-29
- **Bench:** A. N. Ray, M. H. Beg, Iaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oordit-singh-and-ors-etc-v-munsha-singh-and-ors-etc-7033
- **Pages:** 32

## Headnote

Limitatio11 Act, 1908-S. 14-Applicability of-Punjab Limitation (Cus .. -
toms) Act, 1920 Art. 2 of Schedule-Accrual of the rig/11 to use-Meaning of.
The appellants filed three suits (the earliest of the three suits was filed on·
December 18, 1945) for possessiou of lan:ds claiming that K, the last owner·
of the lands died on Angust 15, 1945.
Those suits were dismissed on August
3, 1951, as premature on. the ground that the fact of the death of K had not
been established.
The appellants again instituted three suits in October 1952, December 1952"
and May I 953 fQr the same relief as in the previous suits alleging that the right
to sue had accrued after August 16, 1952, that is, after a period of seven years,
under s. 1 O&· of Evidence Act; that K died three years before the date of the
filing of the suits;
and
that
~hey were within time under art. 2(b) of the·
Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which provides that the period of limitation for a suit for possession of ancestral immovable property which has been alienated, is three years, if a declatory decree·
has been obtained, and that period commences from the date on which the right
to sue accrues.
On appeal, a single Judge of the High Court decreed the suits holding that
K having been. treated as alive by the High Court when it passed the previous
decree in 1951, the conclusion of the lower courts that he had been dead for
seven years before the institution of the suits could not be sustained and als&
excluded the time spent on the previous litigation from 1945 to 1951 under
s. 14(1) of the Limitation Act. On Letters Patent appeal, the Division lBench
held : ( 1) that the single Judge was in error in excluding the time spent on
the previous litigation by applying s. 14(l) of the Limitation Act; (ii) that the
words "or other cause of a like nature" occurring in s. 14(1) had to be read
ejusdem ge11eris with the preceding words "relating to the defects of jur'sdiction"
and that: it was not .possible to give the benefit of that provision to the plaintiffs.
Dismissing the appeal to this Court (per A.N. Ray, C.J.,
and
Jaswam·
Singh, Jl
HELD: (1) Under art. 2(b) of the Schedule to
the
Punjab
Limitation
(Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring
their suits within three years of the accrual of the right to sue (which according
to well settled judicial opin'on means the accrual of the right to seek relief),
namely within three years of the death of K. They had to prove affirmatively
that the death of K took place within three years of the institution of the
suits. Granting that K has to be presumed to be dead, it cannot be overlooked
that under s. 108 of the Evidence Act, the precise time of the death is not a
matter of presumption but of evidenee. and the onus of proving ~hat the death
took place at any particular time within seven years lies upon the person who
claims the right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, therefore, to prove that K had not
been
heard of for a period of seven years and was to be taken to be dead, but it
also lay heavily on them to prove the particular point of time within >even
years when K's death occurred.
Th~ they have failed to prove. In the
absence of such oroof, it cannot be held that the present suits had ns>t been r
brought within th.ree years of the accrual of the right to sue.
[263 D-G]
.,
. ,
.....
•
GURDIT SINGH V. MUNSHA SINGH
251
Nepean v. Doe D. Knight (1837) 2 M & W 894; 7 L J Ex 335, Jayawant
A.
Jivarao Deshpande v. Ramachandra Narayan Joshi (A.LR. 1916 Born. 300),
Lalchand Marwari v. Ramrup Gir (LIII I.A.24; A.LR. 1926 P.C. 9), Jiwan
Singh v. Kuar Reoti Singh & Anr. (A.LR. 1930 All. 427), Kottappalli Venkatesirar/11 v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380), P1miab and
Ors. v. Natha & Ors. (A.LR. 1931 Lah. 582) and Ram Kali & Ors. v. Narain
Singh (A.LR. 1934 Oudh 298 F.B.) referred to .
(2) If K had died beyo

## Text

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250
OORDIT SINGH AND ORS. ETC.
v.
MUNSHA SINGH AND ORS. ETC.
November 29, 1976
[A. N. RAY, CJ., M. H. BEG AND IASWANT SINGH, JJ.]
Limitatio11 Act, 1908-S. 14-Applicability of-Punjab Limitation (Cus .. -
toms) Act, 1920 Art. 2 of Schedule-Accrual of the rig/11 to use-Meaning of.
The appellants filed three suits (the earliest of the three suits was filed on·
December 18, 1945) for possessiou of lan:ds claiming that K, the last owner·
of the lands died on Angust 15, 1945.
Those suits were dismissed on August
3, 1951, as premature on. the ground that the fact of the death of K had not
been established.
The appellants again instituted three suits in October 1952, December 1952"
and May I 953 fQr the same relief as in the previous suits alleging that the right
to sue had accrued after August 16, 1952, that is, after a period of seven years,
under s. 1 O&· of Evidence Act; that K died three years before the date of the
filing of the suits;
and
that
~hey were within time under art. 2(b) of the·
Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which provides that the period of limitation for a suit for possession of ancestral immovable property which has been alienated, is three years, if a declatory decree·
has been obtained, and that period commences from the date on which the right
to sue accrues.
On appeal, a single Judge of the High Court decreed the suits holding that
K having been. treated as alive by the High Court when it passed the previous
decree in 1951, the conclusion of the lower courts that he had been dead for
seven years before the institution of the suits could not be sustained and als&
excluded the time spent on the previous litigation from 1945 to 1951 under
s. 14(1) of the Limitation Act. On Letters Patent appeal, the Division lBench
held : ( 1) that the single Judge was in error in excluding the time spent on
the previous litigation by applying s. 14(l) of the Limitation Act; (ii) that the
words "or other cause of a like nature" occurring in s. 14(1) had to be read
ejusdem ge11eris with the preceding words "relating to the defects of jur'sdiction"
and that: it was not .possible to give the benefit of that provision to the plaintiffs.
Dismissing the appeal to this Court (per A.N. Ray, C.J.,
and
Jaswam·
Singh, Jl
HELD: (1) Under art. 2(b) of the Schedule to
the
Punjab
Limitation
(Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring
their suits within three years of the accrual of the right to sue (which according
to well settled judicial opin'on means the accrual of the right to seek relief),
namely within three years of the death of K. They had to prove affirmatively
that the death of K took place within three years of the institution of the
suits. Granting that K has to be presumed to be dead, it cannot be overlooked
that under s. 108 of the Evidence Act, the precise time of the death is not a
matter of presumption but of evidenee. and the onus of proving ~hat the death
took place at any particular time within seven years lies upon the person who
claims the right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, therefore, to prove that K had not
been
heard of for a period of seven years and was to be taken to be dead, but it
also lay heavily on them to prove the particular point of time within >even
years when K's death occurred.
Th~ they have failed to prove. In the
absence of such oroof, it cannot be held that the present suits had ns>t been r
brought within th.ree years of the accrual of the right to sue.
[263 D-G]
.,
. ,
.....
•
GURDIT SINGH V. MUNSHA SINGH
251
Nepean v. Doe D. Knight (1837) 2 M & W 894; 7 L J Ex 335, Jayawant
A.
Jivarao Deshpande v. Ramachandra Narayan Joshi (A.LR. 1916 Born. 300),
Lalchand Marwari v. Ramrup Gir (LIII I.A.24; A.LR. 1926 P.C. 9), Jiwan
Singh v. Kuar Reoti Singh & Anr. (A.LR. 1930 All. 427), Kottappalli Venkatesirar/11 v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380), P1miab and
Ors. v. Natha & Ors. (A.LR. 1931 Lah. 582) and Ram Kali & Ors. v. Narain
Singh (A.LR. 1934 Oudh 298 F.B.) referred to .
(2) If K had died beyond three years, from the date of the suits, the suits
would be barred by limitation because the appellants cannot claim the benefit
B·:
of s. 14 of the Limitation Act 1908.
The three important requirements of
the section 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 proceed-
;ng and the lat1er proc:::eding must be based on the same cause of action. [265
DJ
(3) The contention that the appeals had been rendered uutenable as a
C ·
result of the amendment made to s. 7 of the Punjab Customs f Power to Contest) Act 1920 by the Amending Act 12 of 1973 has no force and must be
rejected.
Section 4 oft the Act provides that the Act shall not affect any right
to contest any alienation or appointment of an heir made before the Act came
into force.
This section has been left untouched by the Amending Act
of
1973.
In the instant case, the alienation was made before the 1920 Act came
into force and was not affected by that Act. (261 F"Hl
(4) The words "or other cause of a like nature" in s. 14(1) take
their
colour from the preceding words "defect of jurisdiction" according to the rule
of ejusdem gmeris.
Therefore, the defect must be of a character analogous
to jurisdiction barring the Court from entertaining the previous suit.
In the
instant case, the Court which tried and dismissed the previous 1mits as premature did not suffer from inability _or incapacity to entertain the suits on
the
ground of lack of jurisdiction or any other ground analogous to the defect of
jurisdiction. The exclusion of the period during which the previous suits were
pending, could not, therefore, be allowed to the plaintiffs while computing the
period of limitation. [265 E; H; 266 A]
· Bhai Jai Kislum Singh v. People Bank of Northem India, I.L.R. [1944J Lah
136, Dwarkanath Chakravarti v. Atul Chandra Chakravarti (l.L.R. 46
Gal.
870) and Palla Pattab/1iramayya & Ors. v. Veiga Narayana R•u• (A.LR. 1960
A.I'. 625) referred to.
[Obiter : The causes of action in the previous suits and in the present suits
are also different.
And hence the appellants cannot press s. 1.o! into service.]
Beg, l. (Dissenting)
The Division Bench of the High Court was wrong in i~noring the effect
of the finding of the single Judge that a new cause of action had arisen within
three years before the filing of the plaintiffs' SU1its.
[281 CJ
The question of time bar or its removal by resorting to s. 14(1) of Limitation Act postulates that a point of time from which limitation could run had
been ascertained.
As that point could not be the date of the death of
K.
which was unknown, the suits could not be dismissed on that ground. [281 DJ
( 1) The single Judge had sufficiently indicated that the cause of action in
the previous litigation was different from the one in the later inasmuch as the
facts proved in the later ease showing that K must be presumed to be dead
could not be and were not set up in the earlier suits. The cause of action had
not accrued in 1945.
The effect of the judgment in the former suits was that
these suits were premature, which is not the case in the suits ht appeal. The
plaints in the later cases set out the case founded on new facts not in existence
at the time of the earlier litigation and expressly stated why the plaintiffs rely
on the presumption of death of K. If the previous suits were dismissed' on the
ground that they were premature, the cause of action could only be said to
have accrued after their institution.
[268 G; 269 CJ
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252
SUPREME COURT REPORTS
[1977] 2 s.c.R.
The findings. of the single Judge showed that the plaintiJis were cntitlled to
the benefit of the presumption laid down by s. 108 of the Evidence Act.
He
found that till August 3, 1951 when the judgment of the High Court in the
previous suits was delivered, the position was that the death of K had not
been established. This meant that on new facts asserted and proved, K could
be presumed dead when the subsequent suits were instituted in 1952 and 1953.
This presumption of death having become available to the plaintiffs within three
years of the suits and not before, no occasion for applying ~. 14 oJ the Limitation Act could arise.
The evidence sought to be given in the previous suits
was that K had died on a particular date but the evidence in the subsequent
suit was not that he had died on a particular date but that he had nob been
heard of from August 5, 1945 upto the time of filing of the subsequent suits.
[269 H; 270 HJ
Modi Klzalil Khan v. Mahboob Ali Mimi, A.I.R. 1949
PC
78
at
86
•referred to.
(2) (a) If causes of action differ from suit to suit, the accrual oi the cause
of 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 coll,)d not be
made to depend on facts of one type only. Facts denoting their ac,;rual must
differ from case to case.
Proof of date of actual death is conc\rnive.
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.
[271 CJ
lndiaii Electric Work.sl Ltd. v. James M01;rosh & Anr. [1971] (2) SCR 397
followed.
Mst. Ranee S11nw Moyee v. S/rooslree Mokhee Burmonia & Ors. 12 Moore's
I.A. 244, State of Madras v. V. P. Agencies & Anr. AIR 1960 SC 1309 at 1310
an-0 Mst. C'101Jd Kaur v. Partap Singh, 15 lnd. App. 156, referred to.
(b) The expression "cause of action" has sometimes been employed to
convey the restricted idea of facts or circumstances which constitute either the
infringement or the basis of a right and no more.
Jn a wider. and more comprehensive sense it has been used to denote the whole bundle of mat~rial facts
which a plaintiff must prove in order to succeed. These are all those essential
facts without the proof of which the plaintiff must fail in his suit.
[272 G]
(c) Applying these tests, in the instant case, the camcs of action in the
earlier and later litigations would be materially different.
No cause of action
had arisen at all if it is assumed that K had not died at all. K's death was an
essential part of the cause of action. It had to be proved to enable the plaintiffs
to put forward their claims to succeed.
But proof of the date of death was
not essential or indispensable for that purpose. It could only become material
in deciding wh~ther the right accrued had been extingui~hed by the law of limitation.
Both the narrow and wider sense of the term "cause of action' would
include all those facts and circumstances on the strength of which the plaintiff,
urged than they were entitled to the benefit of the obligatory presumption of law
contained in s. 108 of the Evidence Act.
As these were not available to the
plaintiffs before the expiry of seven years from August ,, 1945, it was
not
possible to urge that this cause of action had arisen more than three years
before the filing of the suits.
Therefore, the date of its
uccrual
could
not
lie a day earlier than seven years after August 5, 1945 when K was last heard
of.
[272 G-H; 273 A-Bl
(d) It was for the defendants to est~blish that K was either aliv.e or had
died more than three years before the smts were filed.
The presumption under
s. 107 of the Evidence Act could not come to the aid of the defendants when
the plaintiffs had established facts necessary to raise the presnmption under s.
!08 of the Evidence Act.
[273 El
f
fe) The suits are not barred by limitation.
The plaintiffs discharged their
burden as to when the accrual of their cause of action was within the prescribed
•
period of limitation. If the "media" upon which the plaintiffs rest their rnses
7
GURDIT SINGH V. MUNSHA SINGH
253
are different in the previous and subsequent litigations, the cau~es of action are
different. If the alleged date of death of K was the date of accrual of the
previous cause of action, the date of accrual of the second. could only
be
something other than the date of death of K, it could not possibly be the same.
The other date of accrnal could only be subsequent to August 5, 1945 because
it was held in the previous suit that the suit was premature o~ the groun~ that
seven years since K was last heard of had not elapsed then. Smee the evidence
was !!hat he was last heard of on ,August 5, 1945, the only possible date of!
accrual of the subsequent cause of action could be seven years after the date.
The suits were filed within three ·years of that date.
[273 H; 274 A-Cl
(3) (a). The term 'right to sue' occurring in art. 2 of S~he~.ule to the P~nja~
Limitation (Customs) Act 1 of 1920 must be equated with cause of ac~1'?n.
The "date of death" cannot be substituted for the date of accrnal of the nght
to use". In the Limitation Act the accrual when intended to be tied to the date
of some event is specified as the date of that event. In this case, it is not so.
It cannot be held that the date of accrual in both sets of suits is one 3nd the
same, that is to say, the actruat date of death.
(274 DJ
(b) Wherever the accrual of a right or commencement of a
period
of
limitation, within which a suit must be shown by the plaintiffs to have been
brought, could only be established by proving the date of a person's death, that
duty must be discharged by the plaintiffs or the suit will fail.
But to carry
the doctrine beyond that and to lay down that the date of death must mvariably
be proved, whenever the question of !imitation is raised in such cases ·must
result in stultifying or defeating legal right and wiping out the effects of a
statutory presumption.
The accrual of a cause of action based on untraceabiJity of the owner could not be said to depend at all on proof of either actual
death or the date of actual death of the owner. It accrues es soon as death
can be presumed and not a day earlier.
(278 D-F]
( c) It i• not in every suit for possession that the commencement of the
date of dispossession must be established by the plaintiffs.
It is only in a suit
for possession based on the allegation by the plaintiff of his own dispossession
that the burden is governed/ by Art. 142 of the Limitation Act. [274 G]
( d) In the instant case, the plaintiffs were never in possession and, therefore,
there was no question of their dispossession.
It was a pure Mtd simple suit
for possession on the basis of title against which the defendants had not even
alleged adverse possession.
Therefore, there is no need to bring in the actual
date of death constructively, as the date
of the
presumed
dispossession or
adverse possession has not been asserred anywhere.
(275 BJ
\.
(e) The plaintiffs have asserted and proved that the period of seven years
.A. when K w~ last heard of by those who would in the natural course of events
' have heard of or about himi if he was alive, had elapsed and that their cause
of action matured within three years of their suits.
Assuming that the concept of adverse possession of the defendants was tcr be introduced, the legal
position is that possession of defendants could not be adverse to K's reversioners
even before K could be presumed to be• dead. The defendants themselves had
set up the plea that he must be· still deemed to be· alive.
The plaintiffs could
only be required to prove K's death but not the date of his death or the date
of the plaintiffs' dispossession. Neither cases dealing with recovery of possession
on the plaintiffs' allegation of their own dispossession nor those where proof
of date of death was a necessary statutory' dutv for showing that the suit was
within time; are applicable in these cases.
(275 E-Fl
NeP.ean v. Doe D. Knight (English Reports 15() Exchequer p. 1021), !ayawant llvanrao Deshpande v. Ramachandra Narayan Joshi, AIR 1916 Born. 300
& 301., Lal Chand Marwari v. Malzant Ramrup Gir & Anr. AIR 1926 PC 9,
Jiwan Singh v. Kuar Reoti Singh & Am·. AIR 1930 All. 427, Kottapalli Vehkateswarlu v. Kottapa/fi Bapayya & Ors. AIR 1957 AP 380, Puniab v. Natha
AIR 1931 Lah. 582 (FD) & Ram Kali & Ors. v. Narain Singh AlR 1934 Oudh
298 & 299-300, i:el'rered to.
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SUPREME COURT REPORTS
[ 1977] 2 S.C.R.
(f) lt is neither a part of the case of any plaintiff in these cases nor neces·
sary for the success of his case to prove that K died on a particular d~te or
that K died before or after somebody else.
The plaintiffs cannot b" saddled
with the responsibility to prove this date.
[279 BJ
( 4) The suits were not barred by limitation because the causes of action
in the previous litigation and the litigation now are different and the subsequent cause of action has arisen within three years before the filing of the suits.
Assuming that the suits were filed beyond the period of limitation on
the
actual basis of their claims the plaintiffs are entitled to succeed because 1his is
a fit case in which s. 14(1) Limitation Act could come to the aid
of
the
appellants. They had been asserting repeatedly that the basis of their claim was
that although the actual date of death of K could not be proved, yet, he has
not been heard of for seven years.
That basis having emerged within three
years before the filing of the suits, their suits could not be barred by time. If
the causes of action did not arise no question of its exceeding by the law of
limitation, could emerge.
[280 GJ
The previous suits did not fail for want of jurisdiction. The
delay
in
bringing the present suits was due to the fact that no co_urt could d•!crce the
claim before the cause of action matured. Therefore, the cause of action of
a "like nature" to a defect of jurisdiction is present in these cases, since the
provision has to be liberally construed.
The defect revealed by the evidence
in the, latter litigation was that the suits did no~ lie at all as they were premature.
This was a defecb reasonably comparable to a want of jurisdiction. [280 A-CJ
India Electric Works Ltd. v. Jamel) Mantosh 4' Anr. [1971] (2) S.C.R. 397,
followed.
( 5) (a) If no cause of action could accrue at all unless and until the date
of actual death of K was established, there could be no commencement of a
period of limitation. The only possible point from which limitation could start
running in these cases is the date on which seven years expired from the date
on which K was last heard of. This was within three years before filing of the
E
suits.
[280 DJ
F
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(b) The issue in the earlier litigation was whether K was actually shown
to have died on a particular date.
This was quite different from the issue
decided now, which was whether K's 'whereabouts had remained unknown for
seven years so that he could be presumed to be dead.
[280 Fl
ARGUMENTS
For the appe/iants :
The le}1al presumption under Section 108 was not sou}1ht to be raised in
the prior suits. It was for the first time raised in the sub3equent group of
suits instituted in October, 1952 based on the allegation that Kishan Singh was
not heard of since 15th Au1<Ust, 1945.
This submission opens the questions (i) when is tke presumption of death
to be raised and (ii) whether for the purpose of proceedingl! in which it
is
raised or any prior proceedings.
The presumption is to be raised in
the
proceedings where the question has been raised i.e. the second
group of 'uit.
However, there is no presumption as to the time of death of the person whose
death is accepted as a result of presumption.
The two are distinct matters-(i) the legal presumption of death and (ii)
the time of death preceding the period
when pre_sumption is drawn.
The
death may be at any time during the preceding period of 7 years--the period
that has enabled the court to draw presumption of death.
The law requires that if one has to establish the precise period during thesa
7 years at which such person died he must do so by evidence.
•
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GURDIT SINGH V. MUNSHA SINGH
255
The conclu,ion of the court of presumption of death based upon disappear-
:<111c~ from 15th August, 1945 cannot be ii:nored.
Death at any time on or after 15th August, 1945 does not in any manner
.adversely affect the case of the appellants, inasmuch as the parties had insti-
.tuted suits (of course premature) on 18th Dec~mber 1945 (other suits some
time later decided by a common judgment).
Jf the parties are held entitled
to the benefit of deduction of time from 18th December 1945 to 3rd August,
1951, the c.leath of Kishan Singh even if it took place between 15th August,
1945 to any date before 3rd August, 1951 the suit are not barred by limita-
-tion.
On the pleading of the parties it cannot be assumed that the presumption
·Of death would justify acceptance of date of death any time prior to 15th
A
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.August, 1945.
The period of limitation for the suit for
possession was 3 years.
The
.. defendants had not pleaded in the prior suit that the suit was barred by !imitaC
tion as instituted. In other words it was not alleged that he had died at
.any time 3 years prior to the institution of the suit (18th December, 1945) .
..\ctually death has not been admitted even on 15th August, 1945.
The trial Court and the District Judge held the suit to be time barred
.not on the ground that his death had taken place at a period exceeding 3
years from the date of the institution of the first suit.
They have _apparently
not ignored the possibility of death having taken place during the period be·
D
·tween 18th December, 1945 to 3rd August, 1951.
They have
held the suit
'to be time barred because it was considered that the appellants are not entitled
to deduct the stated period spent in the prior suits.
Even if it is considered that death had taken place during this period or
any time after 15th August, 1945 or during the 3rd August to 31st October,
1952 the suits are not time barred.
Preliminary objection was raised by the respondents as to the effect of
the, Punjab Cusrorns (Power to Contest) Amendment Act, 1973 (Punjab Act
12 of 1973). It was urged that the Act had come into force on- ::!'3rd January, 1973, it has retrospective operation and bars all suits to contest alienation
also including the suits for possession of the property following a declaratory
decree.
It was urged that the appeals are barred as a consequence of repeal
,of the provisions of Puniab Act II of 1920.
The contention as to the effect of Act 12 of 1973
is not correct. The
E
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previous law on the subject of right to contest alienation of immovable proF
\
perty and the limitation of suits relating to alienation of ancc~trnl immovable
"'I :property is regulated by two Acts.
(1) Punjab Aq II of 1920-Described an Act to restrict the powers
of
the descendcnts or collaterals
to co'iltest an alienation of
immovable· property; and
(2) Punjab Act I of 1920-Described as an Act to amend and consolidicate the law governing the limita!ion of suits relating to alienations of ancestral immovable property etc.
The present Act 12 of 1973 repeals
s. 6 of Act II of
1920. It also
·amends s. 7 of the ·aforesaid Act. Effect of the repeal of s. 6 and amendment of s. i merely
is~ that the right to contest vesting
in the collaterals
upto 5th degree has been done away with and the suit to contest alienation
·of ancestral properly has been taken away.
Under the previous existing law
an alienation of non-ancestral property could not be contested.
Act I of 1920 has also not been repealed.
The !imitation provided for a suit for possession i.e. 3 years is still an
,existing provision of the Act. It is obvious that the legislature has retained
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Act I of 1920 unrepeated 80 that the benefit of the decrees may be availableto all persons under s. 8 of the Act and the period of limitation may be retained as before.
·
The effect of the declaratory decree in that the alienation is
not binding
against the inheritance. The succession never remains in abeyance. A person entitled to succeed to the last male holder is entitled to ~ue for possession
on the basis of rii:ht to succession to the property.
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The principle of res judicata would be immediately attracted if the plaintiffs allege the ·~ame cause of action" and seek the exclusion of the time
because the earlier snit was tried on merits by a competent
court
having
jurisdic! ion and was dismissed holding that
plaintiff failed
to
prove
that
Kishan Singh died on 15th August, 1945. This
finding would be binding
betwee~ the pa1iies in the subsequent suits as they have been given after recording the evidence and a full trial by; the competent court having jurisdiction.
Therefore, the plaintiff is barred by principles of res judicat,1 from alleging the accrnal of right to sue before the filing of the earlier suits as
the
same would be res judicata.
The plaintiff is estopped from alleging the
accrual of same cause of action, therefore, no question of exclusion of time
ina&much as the principle of s. 14 of exclusion of time arises only if
the
cause of action is the same. Section 14 uses the words "the proceeding is
founded upon the same cause of action". The language of s. 14 of the Limitation Act by using the words "same cause of action" makes it. very dear that
time can be excluded for the same cause of action only if the earlier suit is
dismissed because of defect of jurisdiction cir other cause uf a like nature .•
On the interpretation of s. 14 also· the time cannot be exclndcd for the reason
that the earlier snit was dismissed as premature and the new suit was filed
on a new cause of action, namely, Alla Singh and his line became extinct on
the death of Kishan Singh on 15th of August, 1952 i.e. after the expiry
of
seven year~ from 15th August, 1945. Since a new cause of action was alleged after the dismissal of previous suit, s. 14 cannot be attracted.
The words "i3 unable to entertain it" mean that it is not able to admit
tho matter for consideration on merits i.e. the inability is of a formal nature
but it does not mean inability to grant relief.
From the decisions one principle is deducible that s. 14 uf the Limitation
Act has to be constmed harmoniously with s. 11 C.P.C.
Section 11 C.P.C.
bars the filing; of a fresh suit on the same cause of action whereas s. 14 of!
Limitation Act allows
time to be
excluded in the
previous
litigations was
"founded on the same cause of action".
Section 12 says that if plaintiff is barred under e. 11 C.P.C. to file snit
for any cause of action then plaintiff cannot file snit for a such cause of·
action in anv court to which C.P.C. applies.
If both i. 1-4 of Limitation Act and principles of re,y judicutll are to operate
then,
it
should
be
held
that
to
apply
s.
14
the
earlier
snit had been dismissed on a technical ground of jurisdiction, or other cause
of a similar nature, court is unable to entertain it without going into
the
merit~ of the case. In the present case earlier ~uits were dismissed because
the plaintiff failed to prove the death of Kishan Singh and the extinction of
line of All~. The words used by ~he High Court at page 302 line 37 are :
"The snit had been rightly dismissed M premature" do not mean that
Kishan ~ingh wa~ alive
but
it means
that
plaintiffs
have
not proved
the
accrual,
of
cause
of
action
namely
the
extinc~ion
of
liiine
of Alla. In these circumstances it is submitted that the snits were not dismissed on the ground of defect of jurisdiction or o•her c-ause of similar nature.
for ""hi ch the court was unable to entertain it. Section 14 of the Limitation
Act does not apply. Plaintiffs
have failed to prove the date of death of
Kishan Singh and the extinction of line of Alla within 3 years of the filing ·
of the snit.
Suits are therefore time barred.
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257
Sections 107 and 108 of the Evidence Act do not help the appellants. Rule of
1!Vidence in s. 107 is that it is for the plaintiff to prove the death of a person
if he was alive within 30 years and. s. 108 says that burden of proving that a.
man was alive is on th" person who alleges he isl alive if it is proved that he
has not been heard of for seven years by those who would naturally have
heard of him if he had even alive. In this case the plaintiffs-appellants have
alleged that Kishan Singh was last heard of on 15th August, 1945 and since
then he is not heard of. The onus is, therefore, on the plaintil[-appellant under
s. 107 of Evidence Act to prove' as to when Kishan Singh died. It is· submit-·
ted that 'Kishan Singh may have died on any date either before 15!h August,
1945 or immediately thereafter. There is no presumption that he died on the
expiry of 7 years from the date he was last heard. The date of death is thus
required to prove by the plaintiff like any other fact.
· The suits are, therefore, barred by time and should be dismissed pl~intiffs'
failure to prow death of Kishan Singh within
three years
of the filmg of
suits.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1944-1946/
67.
(From the Judgments and Decrees dated the 20th July, 1964
of the Punjab High Court in LP.As. Nos. 23 to 25 of 1960).
M. L. Sethi .and Hardev Singh, for the appellants.
S. K. Meh~a and S. Ranga Raju, for Respondents Nos. 1-5.
The Judgment of A N. Ray, C.J. and Jaswant Singh J. was
delivered by Jaswant Singh, J. M. H. Beg, J. gave a dissenting opinion.
JASWANT SINGH, J. These three Appeals Nos. 1944, 1945 and
1946 of 1967 by certificate which are directed against the common
judgment and decree dated July 29, 1964 of a Division Bench of
the High Court of Punjab and Haryana at Chandigarh involving a
question of limitation shall be disposed of by this judgment.
~,
The facts leading to these -appeals are :
As appears from the pedigree table referred to in the judgment under
appeal, Chuhar Singh, a descendant of Amrika, son of Har Lal,
sold land admeasuring 167 kanals and 10 marlas situate in village
Dhugga, Tahsil Hoshiarpur, to Bhagwan Singh, the grandfather of
defendants Nos. 1 to 6, for Rs. 23/8/- vide a registered sale deed
dated June 20, 1885.
After the aforesaid alienation, one Hamira,
a collateral of Chuhar Singh, filed a suit for possession by pre-emption
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 adm·easuring 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
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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 sale of
1885 would not affect the reversioriary interests of Bela and Jawahar.
This declaration was made subject to the condition that before these
plaintiffs or their successors-in-interest would take possession of iheir
share of the land sold, they would pay to Bhagwan Singh or his successors-in-interest a sum bearing the same proportion of Rs. 1611/-
(i.e. Rs. 2378 minus 767 /-) as their share m the land sold bore to the
whole area sold. On the death of Afla Singh, Kishan Singh, his only
son, succeeded him.
On December 18, 1943, Jawahar Singh and
Bela Singh brought a suit for possession of land admeasuring 113
kanals and 18 marlas situate in village Dhugga alleging that Kishan
Singh having died on August 15, 1945, and the line of Alla Singh
having become extinct, they were entitled to possession of the land
in accordance with the aforesaid decree of the Punjab Chief -Court.
This suit was followed by two more suits of identical nature for the
remainder of the land by two other sets of collaterals of Bhagwan
Singh, one by Waryam Singh and his three brothers who claimed half
of the entire holding and the other by Khazan Singh and Jagat Singh.
who claimed one fourth share of the holding.
The Trial Court con--
solidated all these three suits and proceeded to try them together.
Eventually it decreed the first two 'Suits in favour of the plaintiffs pursuant to the aforesaid decree of the Chief Court of Punjab holding
that Kishan Singh had died on August 15, 1945.
It, however, dismissed the suit brought by Khazan Singh and Jagat Singh on the
ground that they being the successors-in-interest of Hamira, who had
brought the aforetsaid pre-emption suit, were stopped from claiming
possession of the land.
On appeal, the District Judge, Hoshiarpur,
dismissed all the three suits as premature holding that the factum of
Kishan Singh's death not been established. The decision of the District
Judge was affirmed in appeal by a Single Judge of the Punjab High
Court by his judgment and decree dated August 3, 1951. The plaintiff's in the last mentioned suits, viz. Waryam Singh and Jiis three
brothers, Jawahar Singh and Bela Singh, and
Khazan Singh
and
Jagat Singh again instituted three separate suits (out of which the
present appeals have arisen) on October 28, 1952, December 16,
1952, and May 12, 1953, respectively for the same relief which was
soucrht by them in the previous suits.
In these suits, the plaintiffs
ave~1·ed as follows with regard to the cause of action :-
"5. After ·Alla, adopted son of Chuhar Singh, deceased,
his son Kishan Singh became hi's 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, h~ is considered. as dead and. his
~uit is being filed.
The lme of Alla has become extmct.
Under these circumstances, the plaintiffs being collaterals
of C!mhar Singh, deceased vide the
pedigree-table
given
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GURDIT SINGH v. MUNSHA SINGH (Jaswant Singh, J.)
2 59
above, are entitled to get
possession of the land of half
sb,are, the sale of which has been cancelled vide the decree
granted
by the
Chief
Court,
subject to
payment of
Rs. 805/8/- of their proportionate share. Hence, we have
filed thi's 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 Alla who was the last man of the line of Alla, has died
on 15th Augu·st, 1945. . ...
7. The suit of the plaintiffs, detailed in para No. 6 above
was based upon the factum of the death of Kishan Singh.
The plaintiffs had no personal knowledge about this fact,
rather it was based on mere hearsay, but this event of the
15th of August. J 945, came out to be false and such a decision was passed in the previous suit between the parties and
the parties are bound by the same. But the wher~abouts of
Kishan Singh, aforesaid, have not been traceable since the
15th August, 1945, according to the above facts mentioned
in para No. 5.
After the 15th of August, 1952, (1945 ?)
the event of his death ~s to be determined according to law
(under section 108) and facts (under section 114) Evidence
Act. Accordingly, Kishan Singh i·s to be considered as dead
after the 15th of August 1952(?) and he is not alive. Two
months prior to the 15th of August, 1945, he had been residing sometime at Mauza Dhugga, District Hoshiarpur and
sometime at Mauza Sonion, District Jullundur, permanently.
Thereafter. he went outside towards Ahmedabad for searching some job and earning his livelihood. The last information about his presence in Ahmedabad was received on the
5th of August, 1945 and since then his whereabouts have
not been available.
" .. 10. The right to sue has accrued against defendants
Nos. 1 to 6 within the jurisdiction of his district after the
16th of August, 1952, in the beginning of the months of
October, 1952 viz., after a period of seven years since the
whereaboufs of Kishan Singh have not been traceable and
since he is c;;onsidered to be dead according to law and so
the Civil Court of this District is competent to try this suit
...... At any rate, Kishan Singh died within a period of
three years from the date of filing the suit and so this suit
is within time.
At any rate, the entire aforesaid period
mentioned in para No. 6 from 18-12-45 to 3-8-51 is liable
to be deducted according to law and facfs." ,
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These suits which were resisted by the contesting defendants on a · H
number of grounds,-were eventually dismissed by the Trial Court as
time barred with the finding that though Kishan Singh had not been
beard for seven years before the institution of the suits, the actual date
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of this death had not been proved. The trial Court, however, held that
the decree of the Punjab Chief Court enured for the 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 a's well from acquiring
the property.
In this view of t'.he matter, he opined that Jagat Singh
and .Khazan Singh were not entitled to any share at all iri 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 ~pent 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, when the judgment (of the
High Court in the previous suits) wa's delivered, the position
was that the death of Kishan Singh had not been established.
Admittedly, the whereabouts of Kishan Singh
are still
not known and, in my opinion, there can be no escape from
the conclusion on these facts that' the death of Kishan Singh
must be presumed under section 108 of the Indian Evidence
Act a·s h~ had not been heard of for a period of seven years.
The present suits were brought between 28th of October,
1952 and 12th of May, 1953. The correct approach to reach
a solution of the present problem is to give allowance to the
plaintiffs, if found
necessary, for the period
which they
spent in previous litigation that is to say, from the years
1945 to 1951.