Teja Singh, J.
1. This is a Letters Patent appeal from a decision of a learned Single Judge of the High Court, Lahore. The facts shortly stated are as follows: One Prabhu Dial was the landlord of khasra No. 1525 situate at Gannaur, Tebsil Sonepat. Phullu was the occupancy tenant. On 10th February 1937 Phullu's creditors made an application to the Insolvency Court to have him adjudicated insolvent. After the application had been made, but probably before Phullu could be served, he sold his occupancy rights to his landlord on 25th February 1937 and Prabhu Dial sold the entire holding consisting of his rights of ownership as well as the occupancy rights which he had purchased from Phullu, to one Ram Chandar.
2. Later on after Phullu had been adjudicated insolvent, the Official Receiver sold Phullu's estate including his occupancy rights in khasra No. 1525, which had vested in him by virtue of the order of adjudication, to one Ram Sarup. The sale is dated 24th May 1937. Ram Chandar who had obtained the possession of khasra No. 1525 from Prabhu Dial, brought a suit for declaration that the said land belonged to him. The suit also related to certain other land, but with that we are not concerned. The suit was decreed by the trial Court and the decree was upheld by the lower appellate Court as well as by the High Court.
3. But on further appeal to a Letters Patent Bench of the Lahore High Court the decree of the trial Court was set aside and Ram Chandar's suit was dismissed on the ground that the sale of occupancy rights by Phullu in favour of Prabhu Dial having taken place during the pendency of the insolvency proceedings was ineffective, and accordingly neither Prabhu Dial nor Ram Chandar who purported to have purchased those rights from Prabhu Dial could acquire any title to those rights.
4. Ram Sarup instituted the present suit for possession of khasra No. 1525 on 14th October 1943. His allegation was that he had purchased the occupancy rights from the Official Receiver and was consequently entitled to get possession* of the land as an occupancy tenant. Ram Chandar resisted the suit on various grounds, one of them being that since the original occupancy tenant had sold his rights to the landlord and the latter had in his turn sold the entire holding to him, the sale of the occupancy rights by the Official Receiver was void. The plaintiff's reply to this objection was that the previous decision between the parties operated as res judicata and that the defendant was debarred from raising the plea. The two issues framed by the trial Court were whether the sale by the Official Receiver in the plaintiff's favour of the occupancy rights was illegal and whether the defendant was not estopped by the principle of res judicata from taking the plea contained in issue 1. Issue 1 was found for the defendant but the second was held in favour of the plaintiff and the suit was decreed. On appeal the Senior Subordinate Judge upset the finding of the trial Court on the question of res judicata and dismissed the suit with costs. Against the decree of the Senior Subordinate Judge the plaintiff preferred a second appeal to the High Court, Lahore. It may here be mentioned that after Ram Chandar's suit for declaration had been eventually dismissed by the Letters Patent Bench of the Lahore High Court, he instituted a suit in the revenue Court on 4th October 1943 for cancellation of the sale of occupancy rights by the Official Receiver in favour of Ram Sarup. His position was that because he had bought the ownership rights from the landlord on 26th February 1937 and the Official Receiver sold the occupancy rights to Ram Sarup without obtaining his consent, the sale was voidable at his instance. This suit was dismissed as barred by time.
5. The learned Single Judge whose judgment is now under appeal, agreed with the Senior Subordinate Judge that the question relating to the sale of occupancy rights by the Official Receiver to Ram Sarup could not be taken to have been finally decided in the previous suit and accordingly the decision in that suit did not operate as res judicata on this point. As regards the effect of the revenue suit, he held that since the suit was dismissed as barred by time and the revenue Court did not go into the question of the validity of the transfer in favour of Ram Samp, the decision therein did not operate as res judicata either. He further held that though Ram Chandar's remedy to have the sale of occupancy rights by the Official Eeceiver to Ram Sarup set aside by a regular suit was barred by time, being in possession it was open to him to question the legality of the sale and urge that the sale was not binding upon him because his consent had not been obtained and the plaintiff's suit for possession could not be decreed. In the result the learned Judge upheld the decree of the Senior Subordinate Judge and dismissed the appeal.
5. The appellant's learned Counsel admitted that the sale by the Official Receiver of occupancy rights in favour of Ram Sarup was voidable at the instance of Ram Chandar, because he had become the landlord by virtue of the sale made in his favour by Prabhu Dial on 26th February 1937. What he, however, urged was that the only way in which Ram Chandar could avoid the sale was by bringing a regular suit in a revenue Court and since he bad adopted that course and his suit had been dismissed, he had no right to resist the plaintiff's claim for possession of the land as occupancy tenant. Learned Counsel further argued that according to the law of Limitation Ram Chandar had only six years within which he could avoid the sale of occupancy rights by the Official Receiver and this time having elapsed long ago, the sale must now be regarded as legal and binding upon him. As regards the first point, learned Counsel was not, able to support his contention by any authority. The provisions regarding the alienation of or succession to the right of occupancy are contained in Chapter v, (Section 53 to 60) Punjab Tenancy Act. Section 53 deals with private transfer of the right of occupancy under Section 5 and Section 54 with the procedure on foreclosure of mortgage of the said rights of occupancy.
8. Section 55 lays down that a right of occupancy under Section 5 may be sold in execution of a decree or order of a Court and prescribes the procedure to be followed when sale is to be made. Section 59 relates to succession to occupancy rights. Section 60 is to the effect that any transfer of a right of occupancy in contravention of the provisions of the Chapter Bhall be voidable at the instance of the landlord. There is nothing in this section or in any other section of the Punjab Tenancy Act which prescribes a mode in which the landlord can exercise his right of avoiding the transfer hit by the provisions of the Chapter; nor is it laid down anywhere that this can only be done by bringing a regular suit. It is true that the Limitation Act contemplates suits of this kind and prescribes a period of limitation therefor, but from this it cannot be concluded that the intention of the Legislature was that when a landlord wishes to exercise his option given to him by Section 60 and avoid a transfer made without his consent or in contravention of the provisions of law, he can do so only by a suit. Take by way of analogy the case of a contract to which a party's consent has been obtained by coercion, fraud or misrepresentation. Section 19, Contract Act, lays down that such a contract is voidable at the option of the party whose consent was so obtained. Now if thut party wishes to bring a suit to have the contract avoided, he can do so within, three years. Suppose he does not bring a suit and it is the other side who sues for the enforcement of the contract after the lapse of three years; is it open to him to raise the plea that the contract was vitiated on account of coercion, fraud or misrepresentation and is he entitled to avoid it? Can it be urged that since he did not have the contract set aside by a regular suit within the time allowed by law, he is debarred from raising the plea in defence that the contract was voidable and he is not bound by it? There is ample authority for the view that the answer to both these questions must be in the negative. Reference may be made inter alia to Sri Kishan Lal v. Mt. Kashmiro, a decision of their Lordships of the Privy Council and reported as A.I.R. (3) 1916 P.C. 172, Mina Lal v. Kharsitji 30 Bom. 395, Ramanasari v. Muthuswami Naih 30 Mad. 248 and Rajah of Ramnad v. Arunachellam Chettiar A.I.R. (3) 1916 Mad. 350. In the Bombay case the defendant signed an acknowledgment for a sum in favour of the plaintiff firm on 4th June 1893. On 19th June 1894 he paid something in cash and' for the balance he passed an instalment bond. In 1897 the firm sued the defendant for the first and second instalments that had become due under the instalment bond. The defendant admitted the claim and the suit was decreed by consent.
9. In 1898 the defendant instituted a suit for cancellation of the instalment bond alleging that it was obtained by misrepresentation and fraud and was void in law having been passed in respect of wagering transactions and that nothing, was due under it. It was held that he was entitled to resist the claim by pleading fraud and he was entitled to urge the plea, though he might have himself brought an unsuccessful suit to set aside the transaction. In Sethurama Sahib v. Chotta Raja Sahib A.I.R. (5) 1918 Mad. 751, the question was about the validity of an agreement by which the terms of a decree affecting certain minors were varied. One of the parties to the agreement wanted to enforce it. The other party urged that it was voidable at his instance and he was not prepared to abide by it. He was met with the plea that not having taken any steps to have it avoided by proper proceedings and within the time allowed by law, he could not wriggle out of it. The learned Judges repelled the last contention with the following remarks:
The next objection is that as that agreement varies the terms of the decree in the suit oi 1896, it is invalid under Order 32, Rule 7, Civil P.C., corresponding to Section 462 of the old Code, as not having been sanctioned by the Court. Order 32, Rule 7, Clause 2, Civil P.C., makes such an agreement voidable against all the parlies other than the minor. Each of the parties to the suit (who were both minors at the time of the agreement which took place at the end of 1897) could, therefore, avoid it as against the other. Now I false it the defendant wishes to avoid it while the plaintiff does not wish to avoid it. It was not denied that more than three years had elapsed since the defendant attained majority when this suit was instituted. But the Privy Council has held in Sri Kishan Lal v. Kashmiro A.I.R. (3) 1916 P.C. 172 that though a defendant might be barred from instituting a suit to aviod a transaction voidable against him, he could defend a suit brought against him by pleading the voidability of that transaction as against him. I am, therefore, of opinion that Ex. C can be avoided by the defendant in defence to this suit.
10. As regards the effect of limitation, it is now well-settled that the Limitation Act only applies to suits or applications mentioned therein and does not debar a person from raising a plea in defence.
11. In the present case the defendant has all along been in possession and even if it be supposed for one moment that if he wanted to avoid the sale it was his duty to bring a suit for the purpose, the only effect of his not doing so is that his remedy is barred; his right to avoid the sale still remains. The only case where a man loses not only the remedy but also the right by his failure to bring an action within time is the one which comes within the purview of Section 28, Limitation Act. In Muhammad Raza Ahmad v. Zahoor Ahmad A.I.R. 1930 All. 858 the plaintiff had a share in a certain house. During his minority his guardian alienated that share without the permission of the Guardian Court. The plaintiff sued for partition of the house and for a declaration that the sale was void and ineffectual as against him. The defence was that the sale effectively conveyed the rights of the plaintiff and that the same not having been set aside within three years from the time the plaintiff attained majority was conclusive by lapse of limitation. The trial Court as well as the District Judge held that the sale not being made with the permission of the District Judge was voidable but the plaintiff's claim was barred by limitation. The following observations made by the learned Judges can be quoted with advantage:
The learned District Judge thinks that plaintiff l's possession does not affect the question of limitation in a case like this, as he was bound to have had the voidable sale set aside within three years, as provided by Article 44, Limitation Act, and that his in action in that respect is fatal to his title.... If the view of the lower Courts be correct, it should follow as a corollary that the vendees could have successfully sued the plaintiffs in ejectment. It is founded on the erroneous assumption that the failure of the rightful claimant to have a voidable deed set aside within the time limited by law has the effect of extinguishing his title, though he right have continued in possession.... In other words, limitation can be successfully pleaded against a defendant whose title is to be taken as extinguished by lapse of time. This view is, however, opposed to a number of decided cases including the decision of the Privy Council in Sri Kishan Lal v. Kashmiro A.I.R. 1916 P.C. 172 The only cases in which lapse of time not only bars the remedy but extinguishes the title of a claimant are those provided for by Section 28, Limitation Act, which is confined to persons, plaintiffs or defendants, whose suit for possession, if brought, would be barred by limitation. It has been held in numerous cases that Section 28, Limitation Act, does not apply to persons who, being in actual possession which hag never been disturbed, have had no occasion to sue for recovery of it, as a party in possession cannot be prejudicially affected by the law of limitation.
12. I am, therefore, of the opinion that there is no substance in the objections of the appellant's learned Counsel and it was open to the defendants to resist the plaintiff's suit for possession on the ground that the sale of occupancy rights in his favour having been made without his consent can be avoided by him. I am further of opinion that the fact that the defendant's suit for cancellation of the sale was held to be barred by time cannot debar him from raising the plea that the sale was voidable at his instance, for the simple reason that being in possession it was not necessary for him to bring the suit. It was urged on behalf of the plaintiff appellant that the plea taken by the defendant before the learned Single Judge and accepted by him, was never raised in so many words in the written statement and it was an after thought. I do not think that this contention is substantially correct, because defective as the defendant's written statement was it appears from the judgment both of the trial Sub-Judge and the Senior Subordinate Judge that the defendant's case had all along been that the sale having been made without his consent, it did not affect his rights. As has been held by their Lordships of the Privy Council in more than one case, the pleadings in India should not be construed strictly and if it is possible to find out the real nature of the dispute, the mere fact that it is not clearly mentioned in the pleadings should not prevent the Court from adjudicating upon it. In this case there is not the slightest doubt that the defendant mainly depended upon the sale of occupancy rights having taken place without his consent and in contravention of the provisions of the Punjab Tenancy Act. There is, however, one thing that deserves consideration and that is that since the written statement was not properly worded, it may be that at the time the issues were raised the plaintiff did not consider it necessary to raise any counter defence to the plea of voidability of the sale which he might have otherwise raised. But this defect could be cared by sending back the case and giving the parties an opportunity of bringing out their respective points of view by amendment of the pleadings.
13. Last of all, it was urged by the appellant's learned Counsel that if it be held that the suit involved a question relating to the setting aside of the transfer of the occupancy rights at the instance of the landlord, it was not triable by the civil Court. It is a pity that this question was not raised before the learned Single Judge, but since it affects jurisdiction it is not open to us to ignore it. Sub-section (8) of Section 77, Punjab Tenancy Act, gives the list of suits which are triable by revenue Courts alone and Clause (h) of it relates to suits by a landlord to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made, or for both purposes. The proviso to Sub-section (3) is to the effect that where in a suit cognizable by and instituted in a civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a revenue Court, civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order 7, Rule 10, Civil P.C., and return the plaint for presentation to the Collector. Now it is true that I the present suit when instituted in the civil Court did not fall in the category of suits mentioned in Clause (h) of Sub-section (3) of Section 77, but the plea raised by the defendant landlord that the sale was not binding upon him and should, therefore, be set aside made it necessary for the Court to decide the matter which could only be heard and decided by a revenue Court under Sub-section (3). Accordingly the case came within the ambit of the proviso and the proper procedure would be to return the plaint as laid down therein.
14. In the result I would allow the appeal, set aside the judgment of the learned Single Judge and send back the case to the trial Sub-Judge with the direction that he should call upon the defendant to make his plea regarding the voidability of the sale clear and definite in his written statement by making a suitable amendment thereof, after that to give the plaintiff an opportunity of raising a counter defence to the defendant's plea if he wishes so to do, by means of a replication and then to return the plaint for presentation to the Collector in accordance with the procedure laid down in proviso 1 to Sub-section (a) of Section 77, Punjab Tenancy Act. In view of the peculiar circumstances of the case I would leave the parties to bear their own costs for all the proceedings up to this stage.
15. The parties' counsel have been directed to cause their respective clients to appear before the trial Sub-Judge on 26th July.
16. I agree.