(1) These three appeals (Letters Patent Appeals Nos. 23 of 1960, 24 of 1960 and 25 of 1960), which are interconnected filed under clause 10 of the Letters Patent are directed against a judgment of a learned single Judge who has decreed the suits of the plaintiffs to the extent indicated in his judgment in reversal of the decree of dismissal of the Courts below.
(2) The necessary pedigree-table is to be found in the judgment of the learned Single Judge and need not be set out again. The undisputed facts are that on 20th June 1885 Chuhar Singh who was a descendant of Amrika son of Har Lal sold 167 kanals odd of agricultural land for a sum of Rs. 2,378/- t0 Bhagwan Singh. One Hamira, a colleteral of Chuhur Singh, brought a suit for possession by pre-emption in respect of 52 kanals 13 marlas which was decreed on 29th April 1889 on payment of Rs. 671/-. The remainder of the land measuring 114 kanals 17 marlas was mutated in favour of Bhagwan Singh on 4th May 1890. Hamira sold back the land the possession which he had taken pre-emption to Bhagwan Singh on 20th September 1890. The result was that Bhagwan Singh remained the owner of the entire land which had been sold to him. Chudhar Singh died in 1896. In 1898 Jawahar Singh and Bela Singh who were descendents of the line of Bharmian another son declaration that the sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the property was ancestral and the sale was without consideration and necessity. On 29th July 1902 this suit was finally decided by the Punjab Chief Court in appeal the decision being that the sale was good up to the extent of Rupees 1,611/-
It was however directed that on the death of Alla Singh adopted son of Chuhar Singh and successor-in-interest could take possession of the land on payment of the consideration money to the vendee or his successors-in-interest. On the death of Alla Singh Kishan Singh succeeded him. On the death 18th December 1945 Jawahar Singh and Bela singh instituted a suit for possession of the aforesaid land on the allegation that Kishan Singh had died on 15th August 1945 and the line of Alla Singh had become extinct. Two more suits were filed by the other collaterals one by Waryam Singh and his three brothers claiming one-hals share in the entire holding and other by Khazan Singh and Jagat Singh who claimed one-fourth share. The trial Court decreed two of the suits but dismissed the suit of Khazan Singh and Jagat Singh on the ground that the successors-in-interest of Harmira were estopped from claiming possession.
On appeal, the District Judge held on 17th August 1948 that it has not been proved that Kishan Singh has died on 15th August 1945. The suits were ordered to be dismissed in the following words:
'In view of my finding to the effect that Kishan Singh had not died, all the three suits would be premature and must be dismissed as such' The appeals were taken to the High Court against the dismissal of the suits and the concluding portion of the judgment of Harnam Singh J., who disposed them of on 3rd August 1951 is- 'That being the situation of matters, I have no doubt that the lower appellate court was right in finding that the plaintiffs in the three cases had failed to prove the death of Kishan Singh. If so the plaintiffs were not entitled tot he possession of the land in suit and the suits have been rightly dismissed as premature.'
(3) Soon after the decision of the High Court three suits were once again filed by the three sets of the plaintiffs. The first suit was instituted by Waryam Singh and other on 28 October 1952 claiming possession of one-half share in the land in dispute. This was followed by the suit of Jawahar Singh and Bela Singh instituted on 16th December 1952 in respect of one-fourth share. Khazan Singh and Jagat Singh instituted on 16th December 1952 in respect of one-fourth share. All these suits were consolidated and tried together. The main plea taken in these suits by the plaintiffs was that Kishan Singh had not been heard of since 15th August 1945 and his death should be presumed under section 108 of the Indian Evidence Act 1872. It was claimed that the suits were within time and it appears that the benefit of section 14 of the India Limitation was raised by the defendants who are successors-in-interest of Bhagwan Singh the original vendee but the main plea however which has assumed importance now was that the suits were barred by time.
The trial Court found that Kishan Singh had not been heard of for more than seven years and should therefore be presumed to be civilly dead holding that although after the lapse of 7 years when a person was last heard of the should be presumed to be dead but the date of death had to be proved like any other relevant fact. Since the date of death had not been proved the suit was barred by time. It may be mentioned that the period of limitation prescribed for filing such a suit is three years under the relevant provisions of the Punjab Limitation (Custom) Act, 1920 from the date on which the right to sue accrues or the date on which the declaratory decree is obtained whichever is later. All the three suits were dismissed by the trial Court principally on the ground of the bar of limitation. On appeal the learned District Judge upheld the findings of the trial Court except for one matter. According to him. Harmira having successfully brought a suit for pre-emption precluded himself and his successors from claiming possession of that property. In view Jagat Singh and Kahzan Singh could not claim any share in the land of Chuhar Singh which was to be divided equally between Waryan Singh and his brothers (one-half share) and Jawahar Singh and Bela Singh (the other half share) if the suits were to be decreed but as he agreed with the conclusion of the trial Court that the suits were barred by time no question of granting any relief to the plaintiffs arose.
(4) The learned Single Judge has held that till 3rd August 1951 when the judgment of this Court was delivered in the previous suits which had been filed in the year 1945, the death of Kishan Singh had not been established. The present suits were brought between 28th October 1952 and 12th May 1953. The plaintiffs should be given allowance for the period which they spent in the previous litigation namely from 1945 to 1951 under S. 14(1) of Limitation Act. In this manner the suits could not have been dismissed as barred by time. Another matter raised before him related to the question of abatement in Waryam Singh's appeal. Surain Singh one of the appellants in Regular Second Appeal No. 976 of 1954, had died and his legal representatives on the record ought to be condoned. He allowed the appeals of the plaintiffs and decreed the suit of Jagat Singh and Khazan Singh with regard to the one-fourth share of the a similar decree. Waryam Singh and others were granted a decree for one-half share of the land.
(5) The main contention raised by Mr. Hans Raj Sodhi, counsel for the defendant-appellants relates to the question of limitation on which the suits had been dismissed by the first two Courts. According to Mr. Sodhi it is well settled that S. 108 Evidence Act only raised the presumption regarding death which must be proved by other evidence. The owns of proving that death took place at any particular times lies upon the person who claims a right to the establishment of which the fact is essential vide Mt. Harnam Kaur v. Mt. Ratna, AIR 1949 EP 267. In that case while dealing with the claim of the plaintiff to the share of one Karam singh, it was observed by the Bench that the onus lay upon him to prove the Karam Singh had died after Dipa but during the lifetime of Chanda with the result that Chanda succeeded to him and he being the collateral of Chanda had the right to succeed to that land in preference to Mst. Haranam Kaur. In this he had signally failed. Mr. Sodhi says that in order to bring the usits within time the plaintiffs were bound to prove the date of death of Kishan Singh within three years of the institution of the suits. As they has failed to do so and the only finding given by the Courts below was based on section 108 of the Evidence Act, the suits were rightly dismissed as barred by time and no question arose of any benefit being given of S. 14(1) of Limitation Act.
It is further contended that the provisions of S. 14(1) of the Limitation Act did not apply to the facts of the present cases. That section is in the following terms:
'(1) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in Court of first instance or in a Court of appeal against the defendant shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in 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.'
It is pointed out that the previous litigation which commenced in 1945 and ended in 1951 was not being prosecuted in a Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it.
(6) In my opinion, the learned Single Judge was in error in excluding the time taken by the first litigation by applying section 14(1) to the cases of all the plaintiffs in the three suits. He relied on a Bench decision of the Bombay high Court in Maneklal Kaildas v. Shivlal Dayaram ILR (1939) held that the words 'defect of like nature' in S. 14 of the Limitation Act meant and connoted something quite distinct from defect of jurisdiction. It was also laid down that the provisions of S. 14 must be liberally construed and should be applied to a case where the plaintiff was prosecuting in good faith another civil proceeding against the same defendant founded on the same cause of action which was disallowed as premature and in computing the period of limitation the time taken up in such proceeding would be excluded. The entire facts are not given in the report but the contention which was raised before the Bombay Court was that when the appellant applied for a cause of action accrued he instituted a civil proceeding and he prosecuted it bonfide and that proceeding failed because it was held that the cause of action against the respondent had not accrued and therefore the suit against him under the chitti was premature.
The Bombay Bench relied on the observations of the Privy Council in Hem Chunder Chowdhry v. Kali Prosumo Bhaduri ILR 30 Cal 1033 which are extracted in the judgment of the learned Single Judge. There was no discretion however in the Privy Council case about the scope of S. 14(1) and the Bombay Court proceeded to rest its judgment in the aforesaid case on another principle also covered by another decision of the Privy Council with which we are not concerned. It Judge was not invited to a decision of a Full Bench consisting of Harries C. J., Abdur Rahman J. and Mahajan J. (as he then was) of the Lahore High Court in Jai Kishen Singh v. Peoples Bank of Northern India AIR 1944 Lah 136 (FB). The question which the Full Bench was invited to answer was whether the period spent by a creditor in prosecuting a petition for his debtor's adjudication as the Limitation Act in computing the limitation prescribed for an executing application when the petition for insolvency was dismissed on the ground that the act of insolvency was dismissed on the ground that the act of insolvency alleged to have been committed by his debtor did not fall within S. 6 of the delivered the judgment of the Full Bench examined the matter from all aspects.
Dealing with the scope and ambit of the words 'defect of jurisdiction or other cuse of a like nature' used in sub-section (1) and (2) of S. 14 of the Limitation Act, the learned Judge observed:
'The words or other cause of a like nature'. however liberally constructed must be read so as to convey something ejusdem generis or analogous of jurisdiction. If these words are read along with the expression 'is unable to entertain,' they would as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on its merits.'
He found it difficult to give an exhaustive list of defects that these words might be taken to cover. Illustrations furnished by decided case were (I) if proper leave, (ii) if it had fail because no notice under S. 80 Civil Procedure Code had been given (iii) where it would fail for non-production of the Collectors certificate required by S. 7,. Pensions Act and (iv) if a plaintiff or a petitioner failed to establish a cause of action in himself. The learned Judge proceeded to say:
'The fact of the matter is that if on the facts the relief asked for by a plaintiff or a petitioner is found by the Courts to have been misconceived either because the facts stated in the plaint or the petition do not disclose a good and complete cause of action and the plaint or petition are consequently dismissed or rejected the provisions contained in S. 14, Limitation Act could not be of any help.'
If the words 'or other cause of a like nature' have to be read ejusdem generis with the words 'defect of jurisdiction ' and if due significance is to be attached to the words ' it is not possible to see how the benefit of the provision could be given tot he plaintiffs in the suits which have been decreed by the learned Single Judge. In the previous litigation which concluded in 1951 there had been an investigation not only one of the main points in controversy between the parties but also the Court could not be regarded as having been unable to entertain the suits from defect of jurisdiction or other cause of a like nature. It is true that the decision rested on the ground that since Kishnan Singh had not been proved to have died the suits were premature, but according to the principles which have been enunciated by the Lahore Full Bench in Jai Kishen Singh' case AIR 1944 Lah 136(FB) with regard to the scope and ambit of the material words in S. 14(1), even if the plaints in the three suits had been rejected in the very beginning by the Court on the ground that they did not disclose any cause of action the provisions of S. 14(1) would not have been attracted. It is difficult to hold that they would be applicable when the Court after trial of the suits came to the conclusion that the cause of action had not yet arisen.
It has not been argued nor could it be legitimately argued that the Court was debarred by any statutory provision or otherwise or by the requirement of fulfillment of a condition precedent from entertaining the mits. All that it did was to decline to grant relief on the grounds that the suits were premature. I fall to understand how it can be said that a Court is unable to entertain a suit on the ground of defect of jurisdiction etc. when it is perfectly competent to entertain it but for grant relief. In this view of the matter the period taken by the previous litigation could not be excluded under S. 14(1) of the Limitation Act.
(7) Mr. M. L. Sethi has not been able to successfully assail the correctness of the view expressed by the Lahore full Bench. He has relied on the Bombay decision as also the observations of the Privy Council to which reference has been made but as already been pointed out, Their Lordships of the Privy Council did not have occasion to deal with ambit and scope of the words in question and the Bombay Judgment does not take notice of a number of reasons which came to find expression in the decision of the Lahore Full Bench which with respect must be taken as laying down the law correctly.
(8) Mr. M. L. Sethi has not contended that if the period from 1945 to 1951 is not excluded under S. 14(1) of the Limitation Act, the suits would be within time. Since the suits were barred by time, they were rightly dismissed by the first two Courts. It is unnecessary to decide the question of abasement of Waryam Singh's appeal which was agitated before the learned Single Judge and the delay in which was condoned by him.
(9) For the reasons given above, all the three appeals are allowed and the decision of the learned Single Judge is reversed with the result that the suits shall stand dismissed. In view of all the circumstances the parties are left to bear there own costs.
(10) I agree.
(11) Appeals allowed.