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1961 DIGILAW 409 (ALL)

Achhaibar Singh v. Kali Charan Singh

1961-12-21

BRIJ LAL GUPTA, M.C.DESAI

body1961
JUDGMENT Brij Lal Gupta, J. - These two appeals are by the plaintiff arising out of the same suit. They come before this Bench on a reference by a learned Single Judge of the Court. 2. The suit giving rise to the appeals was a suit for possession and for recovery of Rs. 200 as damages. 3. The facts giving rise to the suit, briefly stated, are as follows. One Mukandi Singh was the fixed rate tenant of the land in question. He died leaving Mst. Bageshwara as his widow. He had a daughter whose son, according to the plaintiff, was one Jang Bahadur. In 1933 Jang Bahadur sold the land in dispute to the plaintiff. The case of the plaintiff was that after this sale sometime in July 1955 the defendant took forcible possession of the land in question. On 24-3-1945 the plaintiff filed the suit for the reliefs which have already been stated above. 4. The defence to the suit was that Jang Bahadur was not the daughter's son of Mukandi Singh, and that there was a sister's son of Mukandi Singh named Mata Prasad and it was this Mata Prasad who after the death of Mukandi Singh and Smt. Bageshwara took possession of the land. It was pleaded that the plaintiff who alleged to have derived title on the basis of the sale by Jang Bahadur did not derive any title for the reason that Jang Bahadur was not the daughter's son of Mukandi Singh. Accordingly the sale in favour of the plaintiff by Jang Bahadur was of no avail. There were other pleas also taken by the defendant. The pleas related to jurisdiction as well as to limitation. 5. An issue whether the plaintiff was a fixed rate tenant or not was referred for decision to the revenue court. The revenue court held against the plaintiff and the trial court relying upon the finding of the revenue court dismissed the suit except in respect of grove No. 322 and regarding damages. Dissatisfied with the decree of the trial court the plaintiff went up in appeal to the lower appellate court. The revenue court held against the plaintiff and the trial court relying upon the finding of the revenue court dismissed the suit except in respect of grove No. 322 and regarding damages. Dissatisfied with the decree of the trial court the plaintiff went up in appeal to the lower appellate court. The lower appellate court appears to have assumed that the civil court had jurisdiction to entertain and decide the suit but it held that the law on the question of limitation which applied to the case was the law of limitation provided under the Amending Act of 1947 and not the limitation as originally provided for a suit under Section 180 of the U.P. Tenancy Act. The suit having been admittedly filed beyond two years, the period of limitation provided under the Act of 1947, the suit was dismissed on that ground. This was so far as the land in question was concerned. So far as the amount of damages was concerned the amount was reduced from Rs. 200 which was awarded by the learned Munsif to Rs. 50. 6. Against this decision of the lower appellate court the plaintiff has filed two appeals in this Court, the two appeals being Second Appeal Nos. 226 of 1953 and 1010 of 1953. 7. So far as the question of limitation is concerned, it appears to us that the view taken by the lower appellate court is wholly unsustainable. Regarding the question of limitation the facts appear to be that according to the allegations made by the plaintiff he was dispossessed in Asarh 1941. This corresponds to July, 1941. It follows that the cause of action for the suit would arise in July, 1942. The limitation under the law, as it then stood, would be a period of three years and would expire only in July, 1945. The suit was filed on the 24th of March, 1945, that is to say, within the limitation provided by law as it stood on the date of the suit. It was only subsequently in 1947 when the U.P. Amendment Act X of 1947 was enacted that the period of limitation for a suit of this kind was reduced from a period of three years to a period of two years. It was only subsequently in 1947 when the U.P. Amendment Act X of 1947 was enacted that the period of limitation for a suit of this kind was reduced from a period of three years to a period of two years. The suit however having been filed prior to the coming into force of this Act and the cause of action also having arisen prior to the Amending Act it is clear that the limitation which would apply to the suit would be the limitation as provided under the law as in force on that date and not under the law which came into force subsequently during the pendency of the suit. It may also be stated that there is nothing in the Amending Act to show that the provision with regard to limitation in the Amending Act had been given retrospective effect and would also affect the suits or the proceedings which had been initiated before the Act came into force. In Soni Ram v. Kanhaiya Lal, ILR 35 All. 227 the Judicial Committee of the Privy Council laid down the law on the point as follows: - "The law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary .. ." It has already been said that there is nothing in the Amending Act to show that the period of limitation provided under that Act was intended to have retrospective operation. It follows that the view of the lower appellate court on the question of limitation was clearly wrong and the suit could not be defeated on the ground of limitation. 8. Some argument was made before us by Sri Man Singh learned counsel for the defendant-respondent that the civil court did not have jurisdiction to entertain the suit. It was admitted by learned counsel that one of the reliefs related to a grove. The suit in respect of the grove was undoubtedly maintainable in the civil court. There is authority in this Court for the proposition that where part of the relief can be granted only by the civil court even though another part of the relief may be obtainable only from the revenue court the suit as a whole will be maintainable in the civil court. There is authority in this Court for the proposition that where part of the relief can be granted only by the civil court even though another part of the relief may be obtainable only from the revenue court the suit as a whole will be maintainable in the civil court. Upon this view we do not find any substance in the argument of the learned counsel for the defendant respondent that the civil court had no jurisdiction to try the suit. 9. Upon our finding that the view of the lower appellate court on the question of limitation was legally unsustainable the plaintiff-appellant is entitled to succeed. 10. Accordingly we decree the suit of the plaintiff with regard to the tenancy plots and set aside the decree of the lower appellate court with respect to those plots. So far as the other appeal which relates to damages is concerned we do not find any sufficient reason to interfere with the computation of damages made by the lower appellate court. We accordingly maintain the decree of the lower appellate court. 11. The result is that Second Appeal No. 226 of 1953 is allowed and Second Appeal No. 1010 of 1953 is dismissed. Parties shall bear own costs.