Panna and Giriraj vs Madanlal

Ranawat, J.—This is a civil second appeal arising out of a suit filed by Madan Lal against Panna and Girraj on 18-12-194/for possession of land Khasra Nos. 344, 347 and 51 in village Natoj, Tehsil Lachmangarh (District Alwar) on the allegations that the plaintiff''s father who was in the occupation of the suit lands died in Sambat year 1986 leaving the plaintiff a minor boy. After the death of the father of the plaintiff and during the minority of the plaintiff the defendants entered into the possession of the suit land and continued to occupy it without any right whatsoever. After coming of age the plaintiff filed this suit for possession on the basis of title. The suit was contested on the point of limitation and on several other grounds.

The trial Court passed a decree on 30-11-1950 in favour of the plaintiff for possession of the suit land which was confirmed on appeal by the District Judge on 18-12-1951. The defendant has now come in second appeal against the judgment and decree of the lower appellate Court and the following two points have been raised here.

The suit of the plaintiff was barred by the law of limitation in force on the date of the filing of the suit.

The village in which the suit land is situate is a Shamlat Deh, in other words, the entire village is jointly owned by all the co-sharers of the village and the plaintiff therefore could only claim joint possession of the suit land and he could not be allowed exclusive possession.

Mr. Umaddut who appeared on behalf of the respondent urged that though the suit would be barred by the provisions of the Indian Limitation Act which was in force in the Alwar State on the date of the filing of the suit, yet the suit of the plaintiff was within time by the provisions of Art. 56, Alwar State Limitation Act of 1926 by virtue of the proviso to S. 2 of the Alwar State Regn. No. 4 of 1934. As regards the second point, the learned counsel of the respondent has referred to the decision in AIR 1938 465 (Lahore) wherein it has been held that a co-sharer can claim exclusive possession of the land from which he had been dispossessed, no matter the land was Shamlat Deh.

It may be observed that Art. 56, Alwar State Limitation Act of 1926, provided a period of 20 years for suits for possession of immovable property from the date of dispossession or discontinuance of possession or assertion of adverse possession by the defendant or from the date of the right of possession. The Alwar State Limitation Act of 1926 was repealed by the Alwar State Regn. No. 4 of 1934 but it was provided by the proviso to S. 2 of that Regulation:

Sections 56 to 64 and Sch. II, Alwar State Civil P.C. of 1938 are hereby repealed (these provisions related to the law of limitation in force in Alwar State) provided that the law of limitation thereby repealed shall apply to all suits, appeals, and applications for which the period of limitation prescribed by the repealed law is longer than the period prescribed by the Indian Limitation Act and or which the cause of action arose before that Regulation came into force.

The Alwar State Regln. No. 4 of 34 came into force on 13-10-1934, the day on which it was published in the Alwar State Gazette. The period of limitation prescribed by Art. 56 was certainly longer than the period of limitation under the Indian Limitation Act and by proviso to S. 2 of Regulation of 1934 it was open to the plainflff to file a suit within twenty years as provided by Art. 56, Alwar State Limitation Act. Subsequently, the Alwar State Reguln. No. 4 of 1934 was again repealed on 10-1-1944 when the Indian Limitation Act was extended to the Alwar State. No provision was made by the law of 1944 regarding suits which could have been filed under the previous law of limitation but had not been filed fell the coming into force of the new Act and for which the time had not run out on such date.

It is contended on behalf of the appellant that this suit is governed by the provisions of the law of limitation of 1944 and the suit is therefore time barred. Note 15 to the preamble of Chitaley''s commentaries on the Indian Limitation Act has been referred to on this point wherein the learned author has dealt with this point at p. 129 of his Edn. 3. Four categories of such cases nave been mentioned and in the fourth category cases where the suit is within time according to the old Act but barred by the new Act and the new Act comes into force at once have been included and with reference to such suits the learned author has stated that

the result of applying the new Act would be to destroy the right to sue which was vested in the plaintiff on the date the new Act came into force. As has already been seen even an enactment relating to procedure will not operate retrospectively so as to destroy vested rights, whether substantive or remedial. It follows that the suit in such cases can be filed within the time fixed by the old Act.

The learned author has quoted:-''Maganlal Kunverji v. Mulji Budha,'' AIR 1951 Kutch 15 (B) and ''Rajah of Pittapur v. Gani Venkatasubba Row'', AIR 1916 Mad 912 (FB), (C). The learned counsel of the appellant has referred to the cases of Khondkar Mahomed Saleh and Others Vs. Chandra Kumar Mukerji and Others, ; '' AIR 1937 9 (Lahore) and Ram Karan Singh and Another Vs. Ram Das Singh and Others in support of the point urged on behalf of the appellant. It may be noted that the case of - ''Ram Karan Singh v. Ram Das Singh (F)'' can be distinguished on the ground that in that case according to the new Act the suit of the plaintiff had not become time-barred on the date of the coining into force of that Act but a higher period of limitation was prescribed by the new Act within which the plaintiff, if he had so chosen to do, could have brought his suit which is not the case here. The new Act of 1944 came into force immediately and on the assumption of the construction put by the defendant on the new Act the plaintiff in the present case even if he had cared to file his suit could not have done so as his right to sue was abruptly cut off by the new Act. It has been observed in-''Khondkar Mahomad Saleh v. Chandra Kumar (D)'' as below:

Statutes of limitation cannot be considered as anything else than matters relating to procedure and ordinarily such statutes have their operation from the date fixed in the statute and govern all matters before the Court after the commencement of the operation of the statute. There is however one exception and it is that where under the Act as amended the application could not be made the amendment will not apply retrospectively, for the principle is that the effect of an amendment is to regulate and not to confiscate a vested right.

The decision in-''Abdul Qadir v. Siraj-ud-Din (E)'' is on the same lines as the Calcutta case referred to above. It is obvious that the intention of the framers of the Act of 1944 could not be regarded as to take away the vested right of the plaintiff to file a suit and it should be construed in such a way as to leave room for the plaintiff to pursue his remedy according to the provisions of the old Act under which he could file a suit on the date of the coming into force of the new Act or thereafter within the period prescribed by the old Act.

The Act of 1944 came into force immediately and it cannot be assumed that the law wanted to deprive the citizens from their vested rights. The decision in-''Khondkar Md. Saleh''s case (D)'' applies to this case with full force and the Courts below cannot be considered to have committed any error in regarding the suit of the plaintiff within time. The first point about limitation urged on behalf of the appellant fails.

Coming to the second point, it may be pointed out that though the entire village is owned by the village community as Shamlat Deh, all the co-sharers possess separate pieces of land for their cultivation and the plaintiff''s father according to the practice of the village could remain into the possession of the land which was in his occupation at that time until partition. The point urged on behalf of the appellant is that the title to the suit land vested only in the village community and the plaintiff could not therefore claim exclusive possession o the suit land. The decree for possession however in the present case does not take away or prejudice any rights of the co-sharers in Shamlat Deh and the apprehension of the appellant in this behalf is without any basis. The tenure of land prevalent in the area of the former Alwar State was on the lines of the tenure system of the Punjab and the authority cited by the learned counsel of the respondent in-''Karamchand v. Dr. Karamdad Khan (A)'' applies with equal force to this case. The defendant if he so chooses to do has got a right to claim partition and his rights of Shamlat Deh as has been observed above would not be affected in any manner by this decree.

This appeal therefore fails and is dismissed with costs.