Gurdial Singh vs Harbans Singh

Teja Singh, C.J.—This regular second appeal has been referred to the Full Bench for the decision of the question whether the appeal lay to this Court. The facts briefly stated are a follows:

Three suits for pre-emption were instituted in the Court of Sub-Judge Kalsia in respect of the sale of land situate in village Mirpur which was a part of the erstwhile Kalsia State. They were all consolidated and. ultimately a decree was passed in them on 18-0-1948. One of the suits had been instituted on 9-10-1943 and the others on 22-10-1943. On 7-7-1948 the vendee preferred an appeal from the decree of the trial Sub-Judge to the Court of District Judge, Kalsia. When Patinla and East Punjab States Union was formed and the Kalsia State became a part of the Union all appeals pending in the Court of District Judge, Kalsia, including the above-mentioned appeal, were transferred to the Court of District Judge, Fatehgarh at Bassi.

Later on, that appeal, was transferred to the Court of District Judge, Patiala and was dismissed by him on 14-5-1951. The present second appeal was instituted in the High Court on 21-8-1951. In the meanwhile, because of the exchange of enclaves between our State and the Punjab, Mirpur was taken away from the Patiala and East Punjab States Union and was added to the Punjab. The Governor-General of India promulgated an order known as the Provinces and States (Absorption of Enclaves) Order, 1950 with a view to giving legal effect to the exchange of enclaves and clarifying the position with regard to the laws that were to be enforced in the areas which were transferred from one State to the other. To the order was attached the schedule of the enclaves transferred. Section 3 provided that

as from the appointed day every enclave specified in the first schedule shall cease to form part of the surrendering unit and shall be included in and form part of the absorbing unit.

Section 4 was .to the effect that

as from the appointed day every enclave-specified in the schedule shall cease to form part of the surrendering unit and the boundaries of that unit shall be so altered as to exclude from them that enclave.

and further that

every such enclave shall be administered in all respects by the absorbing unit as if it formed part of that unit.

Section 5 laid down that

as from the appointed day every enclave specified in the third schedule shall be administered in all respects as if it formed part of the absorbing unit.

Section 8 read as below:

All laws in force in an enclave immediately before the appointed day shall, as from that day, cease to be in force in that enclave, and all laws in force in the absorbing unit shall, as from that day, extend to, and be in force in, that enclave:

Provided that anything done or any action taken under the laws in force in the enclave before the appointed day shall be deemed to have been done or taken under the corresponding law extended to, and in force in, that enclave as from the appointed day.

Section 2(a) defined the appointed day as meaning the date of the commencement of Union that applied to Mirpur ceased to be in the Order which was 25th January 1950.

Both sides are agreed that by virtue of Article 214 of the Constitution of India the High Court of Patiala is the High Court of the Union and ail appeals from the decrees of the District Judges of the Union, including the District Judge of Patiala, lie to this High Court. It is, however, argued by the respondent''s counsel that by virtue of Section 8 of the Order mentioned above, since the area in which the suit property is situated has become a part of the Punjab, the appeal from the decree of the District Judge lies to the High. Court of the Punjab at Simla. The following is the substance of his arguments. According to Section 8 of the Order all laws of the ?Union that applied to Mirpur ceased to be in force therein with effect from 25th January 1950 and in their place laws of the Punjab came to apply. The Punjab Courts Act, one of the Punjab Acts provides that appeals from decrees and decisions of District Judges lie to the High Court of that State. In the present case though the appeal was decided by the District Judge, Patiala, by virtue of the proviso to Section 8 he should be deemed to have done so under the Punjab Courts Act, that is to say,'' the decree passed by him should be deemed to be a. decree passed by a District Judge of the Punjab. Accordingly a second appeal from that decree could only lie to the High Court for the State of Punjab.

As regards the operative part of Section 8, the words thereof are quite clear and it has to be conceded that because Mirpur became a part of the Punjab after the exchange of enclaves the laws of our State ceased to be in force and the laws of the Punjab came into force in that area with effect from 25th January 1950'' This means that on the day the appeal was transferred from the Court of .District Judge, Kalsia the village was governed by the laws of our State but those laws ceased to have any force and their place was taken by the laws of the Punjab long before the District Judge decided the appeal. This, however, did not mean that the jurisdiction of the District Judge to hear and dispose of the appeal which had been duly instituted in the Court of District Judge, Kalsia and had been legally transferred to his Court was taken away.

In fact, the respondent''s counsel admitted that because the District Judge, Patiala, was egally ceased of the appeal he had the jurisdiction to decide it. This is also the correct legal position and is supported by a decision of the Federal Court in - AIR 1943 24 (Federal Court) in which it was held that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In that case a suit had been instituted in a British Indian Court with respect to properties some of which were situated in Burma. While the suit was still pending the Constitution Act of 1935 came into force and Burma ceased to be a part of India. One of the questions raised in the case was whether the British Indian Court could continue to hear the case in so far as it related to Burma property.

The learned Judges observed that in the absence of such a clear indication in the Constitution Act a British Indian Court continues to have jurisdiction to proceed with the trial of a suit already pending before it even with respect to properties situated in Burma. This being the case and the appeal having been properly heard and decided by the District Judge as District Judge, Patiala, I cannot understand how the appeal from his decree can lie to any other High Court except this Court to which the said District Judge is subordinate. The respondent''s counsel referred us to the proviso to Section 8, but the proviso applies to things done or actions taken before the appointed day and the District. Judge passed the decree, which is the subject-matter of the present appeal, after the appointed day.

The respondent''s counsel cited a Bench decision of the Calcutta High Court - ''Bal-bhadra v. Mt. Bhawani� 34 Cal 853, but that case does not help him. The property in suit was situated in the District of Sambhalpur which was originally part of the Central Provinces but was added to Bengal with effect from 16th October 1905. The suit was heard by the District Judge and on appeal the Divisional Judge, Raipur affirmed his decision. From the decision of the Divisional Judge an appeal was preferred to the High Court on 21st December 1905. Raipur was in Central Provinces and the Court of the Divisional Judge, Raipur was subordinate to the Judicial Commissioner of the Central Provinces.

It was, therefore, contended by the respondent that the appeal from the decision of the Divisional Judge, Raipur, lay to the Judicial Commissioner and not to the High Court, Calcutta. The High Court held that the appeal had been properly instituted because Act 7 of 1905 which came into force on 16th October 1905 provided in Sch. D, Part. 2, that in construing enactments in force in the District of Sambhalpore the words "Judicial Commissioner of the Central Provinces" shall be construed as if meaning the High Court of Judicature in Bengal. While dealing with the question of jurisdiction this is what their Lordships observed:

Now, it would seem that under Clause 24 of Section 3, General Clauses Act (Act 10 of 1897) which reproduces the definition of High Court given by Section 2, General Clauses Act of 1868, the Court of the Judicial Commissioner comes within the expression "High Court" in Section 584, Civil P.C. So that as the Court of Divisional Judge was subordinate to the Court of the Judicial Commissioner, and since the passing of the Act 7 of 1905 it is subordinate to this Court, both before an since the passing of the Act 7 of 1905, second appeals must lie from the decisions of the Divisional Judge, formerly to the Judicial Commissioner and now to this Court.

No provision like the one contained in Act 7 of 1905 was made by the Provinces and States (Absorption of Enclaves) Order, 1950. Accordingly, I hold that the present appeal, even though it relates to the property situated in the area which is now a part of the Punjab, lay to this Court and not to the High Court, Punjab at Simla.

The case should be sent to the Division Bench with this expression of opinion.

Passey, J.

I concur.

Gurnam Singh, J.

I agree.