Ishar Dass and others vs Shmt. Chetni Bai

Shamsher Bahadur, J.—This judgment will dispose of two Regular Second Appeals Nos. 127 and 141 of 1960, preferred by the Defendants, arising out of a common judgment of the lower appellate Court which reversing the decree of the trial Judge dec reed the suits of two different Plaintiffs.

2 Some agricultural land was sold by three brothers Lala Ram. Girdhari Lal and Niranjan Dass in the revenue estate of village Somina in Dera Ghazi Khan, district, which is now part of the the territory of Pakistan The sale was made in favour of the Defendant Appellants Ishar Dass, Fatu Ram and Kaura Ram, who are brothers. Two preemption suits were brought one by Chetni Bai wife of Girdhari Lal. These suits were decreed by the subordinate Judge, Dera Ghazi Khan on 21st of December, 1944, on payment of Rs. 766/10/8 in each case. Both Chetni Bai and Sobhan Bai deposited the money in Court and it is not disputed that the vendees Ishar Dass and his brothers realised the amount. The warrants for possession were issued but somehow the possession could not be delivered to the pre-emptors till the time of partition. After August, 1947, the parties migrated to India and in course of time the Defendants Ishar Dass and his brothers laid claim for the property which had been decreed against them in pre-emption suits. These Defendants were allotted some lands in Rasulpur and these were transferred to them in permanent allotment on 3rd of September, 1955.

Subsequently, on 3rd of April, 1957, Chetni Bai and Sobhan Bai brought suits for declaration and possession of the lands which had been finally allotted in favour of the Defendants on 3rd of September, 1955. It may be mentioned in passsing that the suit of the Plaintiffs was in respect of 1/8th share of the land which had been allotted to the Defendants.

A variety of pleas were raised by the Defendants and six issue, were framed out of which the following two are relevant for purposes of the controversy in these appeals:-

(3) Is the suit within time ?

(5) Has this Court no jurisdiction to try the present suit ?

The trial Judge dismissed the suits broadly on the ground that they were barred by time. On the question of jurisdiction it was held that the Court could grant only declaratory relief. In the two appeals preferred by the Plaintiffs the learned Senior Subordinate Judge reached conclusions on both these issues in their favour and allowing the appeals, decreed the suits.

Ch. Rup Chand, the learned Counsel for the Defendant-Appellants, has canvassed that the question of Jurisdiction has been wrongly decided by the lower appellate Court. He has invited my attention to Section 10 of the Displaced Persons (Compensation and Rehabilitation) Act 1954 (hereinafter called the Act) which allows an allottee of immovable property to continue in possession on the same conditions on which he held the property immediately before the date of acquisition Now, all that Section 10 provides for is the special procedure for payment of compensation in certain cases and if an allottee on migration to India has been allowed to remain in possession of evacuee land he may continue to remain there on such terms as the Central Government determines I do not see how this provision of law is helpful to the Appellants. The Plaintiffs have filed suits that they are entitled to possession of portion of the land which had been allotted to the Defendants. They had actually paid the pre-emption money and normally would have been delivered possession of the land decreed by the Court of Dera Ghazi Khan in their favour. Judicial notice can be taken of the wide-scale disturbances in August, 1947, and it is well-known that non-Muslims in western Pakistan migrated en masse to India. The Plaintiffs were not in a position to get possession of the property which had become theirs by virtue of the preemption decrees and payments of the decretal amounts. The Defendants had received the decretal amounts and virtually they have no right or title to that portion of the land left in Dera Ghazi Khan, decreed in favour of the Plaintiffs. Anyhow, the names of the Defendants continued to remain in the Jamabandis and on their basis allotments were made to them of agricultural land in Rasulpur in PalwalTehsil. It is to this land that the Plaintiffs claim to be entitled and they could not bring suits in respect of it till the allotments had been finalised.

Mr. Rup chand then contends that Section 36 of the Act is a bar to the present suit. Under this section:

....no civil court shall have jurisdiction, to entertain any suit or proceeding in respect of any matter which the Central Government or any Officer or authority appointed under this Act is empowered by or under this- Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act

The learned Counsel have led through the various provisions of the Act and there is no specific power vested in the Central Government to decide the dispute which has arisen in this case. It is not the compensation which the Plaintiffs have claimed ; it is the property which the Defendants have acquired in allotment to which, they say, they are entitled. The question of title, which is clearly involved in this case cannot be determined under any of the provisions of the Act. ''Section 9, to which reference has been made by the learned Counsel for the Appellants, relates to payment of compensation in cases of disputes. Manifestly, the Plaintiffs who had never made any claim in respect of the agricultural land which had come to their share as a result of the pre emption decrees could not claim it in compensation under the provisions of the Act. The bar of jurisdection embodied in Section 36 cannot, therefore, prevent the Plaintiffs from bringing the suits, which have been decreed by the lower appellate Court.

The question of limitation is simple. If the Plaintiffs had been enforcing the pre-emption decrees granted to them in 1944 by the Court of Dera Ghazi Khan, there was something to be said in favour of the contention raised by Mr Rup Chand on basis of a Division Bench judgment of the Patna High Court (James and Chatterji JJ.) in Jugal Kishore Prasad Singh and Others Vs. Manaka Singh and Others, In this authority it was held that where the Plaintiffs, who had obtained a decree for possession of land which is submerged under water during rainy season due to inundations of a river but can be cultivated in the rest of the year, do not take possession of it until execution of the decree is barred by limitation, but file a fresh suit for the same purpose, it cannot be said that when the land becomes submerged under water there is any dispossession of the Defendants by vis major. I do not see how the principle of that authority is appplicable to the present case. The Plaintiffs have done all they could to get possession of the lands which had been decreed in their favour. The disturbances following in the wake of the partition of 1947, beyond the control of any one, rendered the possession of the land impossible- The decree was a dead letter and could not thereafter be executed effectively. It cannot conceivably be argued, therefore that the present suits which are not in reality proceedings u/s 47 of the CPC are barred by time. The suits are for possession of lands and the cause of action arose after they had been finally allotted to the Defendants on 3rd of September, 1955 Reference may also be made in this connection to a Bench decision of the Chief Justice and Narula J. in Darshan Singh v. Arjan Singh (1968) 70 P.L.R. 19 in which it was held that "where a Plaintiff bases his claim for possession on the ground of his title, his suit can be considered as barred by time only if the Defendant proves that he had been in possession for more than twelve years before the institution of the suit by dispossessing the Plaintiff." The title suits of the Plaintiffs brought in 1957 could not be thrown out on ground of limitation because the cause of action did not arise earlier than 3rd of September, 1955.

In my view the suits have been rightly decreed by the lower appellate Court. Both the appeals, therefore, fail and are dismissed with costs.