Case: Gurdit Singh and Others Etc Vs. Munsha Singh and Others Etc

2. 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 s ale deed dated June 20, 1885. After the aforesaid alienation, one Hamira, a collateral of Chuhar 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 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 reversionary 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 their share of the laud 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 in the land sold bore to the Whole area sold. On the death of Alia Singh, Kishan Singh, his only sou, 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 Alia 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 consolidated 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 aforesaid 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 Singhs 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 plaintiffs in the last mentioned suits, viz. Waryam Singh and his 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 sought by them in the previous 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 Rs.805/8/- of their proportionate share. Hence, we have filed this suit. The parties are governed by the Zamindara custom in the matters of successionPrior 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 last man of the line of Alia, has died on 15th August, 1945The suit of the plaintiffs, detaile d 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 me re hearsay, but this event of the 15th of August, 1945, 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 whereabouts 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 is to be determined according to law (under section 108) and facts (under section 114) Evidence Act. Accordingly, Kishan Singh is 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, h e 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 whereabouts of Kishan Singh have not been traceable and since he is con- sidered 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 facts.3. These suits which were resisted by the contesting defendants on a number of grounds, were eventually dismissed by the Trial Court as time barred with the finding that though Kishan Singh had not been heard for seven years before the institution of the suits, the actual date 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 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, when the judgment (of the High Court in the previous suits) was delivered, the position was that the death of Kishan Singh had not been establishedAdmittedly, 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 as he 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. Under sub-section (1) of section 14 of the Indian Limitation Act, the time during which the plaintiff has been prosecuting with due diligence another civil-proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is found upon the same cause of. action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it ..... Both the previous litigation and the present are found on the same cause of action. The previous litigation ended with the judgment of the Punjab High Court in which it was held that the suit was premature, the plaintiff s having failed to establish the death of Kishan SinghThe plain fact of the matter is that no proof is forthcoming of Kishan Singh continued existence since 1945. Since the judgment of the High Court in 1951, where it was held that the death of Kishan Singh had not been proved 8 years have elapsed. There ca n be no escape from the conclusion now that Kishan Singhs death must be presumed. The decision of the High Court in 1951 should provide a suitable ground for extension of time under provisions of section 14 of the Indian Limitation Act. The whole basis of the judgment of the courts below, in my opinion, is erroneous. It is not a requirement of section 108 of the Indian Evidence Act that the date of death of the person whose death is to be presumed must be established. All that is said is that if a person is not heard of for a period of seven years, his death maybe presumed.4. The contesting defendants then took the matter 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 Ban k 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 JUDGMENT, the plaintiffs have come up in appeal to this Court as already stated.

Reasoning: contention is, in our opinion, wholly misconceived and cannot be allowed to prevail as it overlooks the savings clause contained in section 4 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) which has been left untouched by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973)6. The alienation in question was admittedly made by Chuhar Singh in favour of Bhagwan Singh in 1885 i.e. long before the 28th day of May, 1920the date on which the Punjab Custom (Power to Contest) Act 1920 (Act 2 of 1920) came into force. It was, therefore, not at all affected by Act 2 of 1920. In this view of the matter, it is not necessary to go into the other contention raised by Mr. I Sethi, counsel for the appellants, to the effect that in any event the preliminary objection raised by Mr. Mehta is not tenable as the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) had not the effect of abrogating the declaratory decree already obtained by predecessors-in-interest of his clients prior to the coming into force of the Amending Act.He has strenuously urged that section 14(1) of the Limitation Act was applicable to the facts and circumstances of the present case and that the Division Bench of the High Court has grossly erred in not giving the benefit of the provision to the appellants which would have entitled them to the exclusion of the time from October 10, 1945 to August 3, 1951 spent in prosecuting 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.8. 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)9. As the plaintiffs had already obtained a declaratory decree, they had to, in order to be able to succeed, bring their suits within three years of the accrual of the right to sue (which according to the well settled judicial opinion means the accrual of the right to seek relief) viz. within three years of the death of Kishan Singh when the line of Alia Singh became extinct. They had to prove affirmatively that the death of Kishan Singh took place within three years of the institution of the suits.The contention of counsel for the plaintiffs is, however, that Kishan Singh not having been heard of for more, than seven years since August 15, 1945, a presumption of the factum or his death has to be drawn at the expiration of seven years from that date in terms of section 108 o f the EvidenceWe find it difficult to accept this contention. Granting that Kishan Singh has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claim a right for the establishment of which the proof of that fact is essential. The plaintiffs had not only, there- fore, to prove that Kishan Singh 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 seven years when Kishan Singhs death occurred. This they have miserably failed to prove. In the absence of such proof, it cannot be held that the present suits had been brought within three years of the accrual of the right to sue.17. 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.18. 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.19. In the instant cases, it is not denied by the plaintiffs that the Court which tried the previous suits was not precluded from entertaining them because of any defect of jurisdiction.Even a most liberal approach to the question does not impel us to hold that the court trying the earlier suits was unable to entertain them on any ground analogous to the defect of jurisdiction. In Dwarkanath Chakravarti v. Atul Chandra Chakravarti (I.L.R. 46 Cal. 870)   where the court trying the previous suit had refused to entertain a claim for rent because it was premature, it was held that in a subsequent suit for the aforesaid rent, the plaintiff could not rely upon the provisions of section 14(1) of the Limitation Act and say that the time did not run against him while those proceedings were being prosecuted. Again in Palla Pattabhiramayya &Ors. v. Velaga Narayana Rao (A.I.R. 1960 A.P. 625) it was held that the fact that the previous suit was dismissed as the plaintiff had no cause of action was not a ground which was covered by section 14 (1).Thus it could not be held that the court which tried the previous suits but eventually threw them out as. premature suffered from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other defect of the like character. Accordingly the exclusion of the period from December 18, 1945 to August 3, 1951 sought by the appellants cannot be legitimately allowed to them while computing the period of limitation.20. There is also another factor which prevents us from granting the benefit of section 14(1) of the Limitation Act to the appellants. It would be seen that in the previous suits, the plaintiffs had averted that the cause of action accrued to them on the death of Kishan Singh which had occurred on August 15, 1945. They have, however, as already indicated by reference to the averments made in paragraphs 5, 6, 8, 9, and 10 of the petition of plaint based the present suits on a different cause of action. It is, however, no t necessary to dilate upon this aspect of the matter in view of our categoric finding that the earlier suits did not suffer from any defect of jurisdiction or any other defect of the like character which could have precluded the court from entertaining them.21. 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.21. 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 court22. 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)