1. The sole point involved in this second appeal against the judgment and decree of the learned Additional District Judge, Karnal, dated June 13, 1969 is as to whether the suit filed by the appellant was within limitation or not.
2. Ballu father of the appellant gave in exchange 182 bighas 1 biswa of land to respondents Nos. 1 to 3 vide registered deed dated Jan, 7, 1953. The appellant filed a suit for declaration under the custom that the exchange would be ineffective against his reversionary rights, the land being ancestral in the hands of his father, which was dismissed by the trial Court. But on appeal the learned Additional District Judge, Karnal, vide judgment dated Dec. 21, 1957 partly allowed the appeal and gave a declaration respecting 67 bighas 13, biswas of land which was found to be ancestral. The decree of the first Appellate Court was confirmed by this court vide judgment dated September 5, 1966.
3. The present suit was filed on January 2, 1967 for possession of 34/91 share of the land mentioned in the plaint with the allegation that Ballu died in the year 1964 leaving behind the plaintiff as his sole heir and that the cause of action had arisen on Sept. 5, 1966 when the decree was confirmed by this Court.
4. The suit was opposed mainly on the grounds of limitation and that the plaintiff was entitled only to one-eighth share in the estate of his father. On both the issues the finding was recorded in favour of the respondents and the suit dismissed. Having failed in the first appeal also the plaintiff has come up in this second appeal.
5. It is not disputed that this suit for the purpose of limitation would be governed by Art. 4(b) of the Schedule to the Punjab Limitation (Custom) Act, 1920 which provides a limitation of three years from the date on which the right to sue accrues or the date on which a declaratory decree is obtained, whichever is later. The two Courts below have recorded a concurrent finding that Ballu died on Dec. 15, 1963 and this finding is not challenged before me. It was however argued by the learned counsel for the appellant that the limitation in the present case would start from the date of the declaratory decree and the declaratory decree in the preset case would be the decree passed by this court on Sep. 5, 1966 because the decree passed by the first Appellate Court merged in that decree and has no independent existence. Reliance for this proposition was placed on a Division Bench decision of the Lahore High Court in Narsing Bakhsh v. Bihari Lal, AIR 1935 Lah 662. The observation made in this decision are in the nature of obiter dicta because the alienation in dispute had been made by a widow to challenge, which it was not necessary to prove that the land in her hands was ancestral qua the reversioner. It was, therefore, observed, by the learned Judges that the provision of the said Act were not applicable but in the alternative it was also held that the period of limitation commences not from the date when the declaratory decree was obtained from the Court of first instance but from the date when the decree was finally confirmed by the last Appellate Court. Support was sought for this view from the privy Council decision in Fitzholmes v. Bank of Upper India Ltd., AIR 1927 PC 25. With due respect to the learned Judges I am unable to subscribe to this view. The decision of the Privy Council in Narsing Bakhsh's case (supra) related to a final decree and it is well established that for making such an application, the limitation starts from the application, the limitation starts from the preliminary decree as confirmed by the final Court. The analogy of this case could not be applied to the case like the present one as shall be evident from the following observation made by the Supreme Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86(at p. 95):--
'While it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely for the purposes of computing the period of limitation for execution of the decree, or for computing the period of limitation for an application for final decree in a mortgage suit. But whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.
In this view of the matter the original order of dismissal of a servant passed in a departmental inquiry is not suspended by the presentation of appeal by the dismissed servant not is its operation interrupted when the Deputy Inspector General of Police simply dismissed the appeal from that order or the Inspector General simply dismissed the application for revision. The original order of dismissal, if there are no inherent infirmities in it, is operative on it own strength and it does not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes here in before mentioned. * *'
6. It is not necessary to discuss the matter in more details because it is directly covered by another decision of the Privy Council in Juscurn Boid v. Prithi Chand Lal, AIR 1918 PC 151 which was approved by the Supreme Court in Mohammed Nooh's case (AIR 1958 SC 86)(supra). In the Privy council case the limitation for the suit was to start from the date of failure of the consideration. The failure of the consideration took place because of the decree passed in an earlier suit wherein auction was held to be void and set aside. The decree of the trial Court was confirmed on appeal. The question which arose was as to whether the limitation would start from the decree of the trial Court or of the Appellate Court and it was ruled in the following passage that the limitation would start from the date of the first court:--
'But by the decision in the first suit, No. 248 of 1904, the sale was reversed in its entirety and for all purposes irrespective of the decrees in the three later suits, so that if the reversal of the sale is the cause of action the only question is whether time began to run, as the plaint alleges, from the 3rd of August, 1906, the date of the appellate decree, or as the defendant-respondent, contends, from the 24th of August, 1905 the date of the original decree in suit No. 248 of 1904. Both Courts have held that the failure of consideration was at the date of the first Court's decree. Their lordship feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.'
7. In view of the above authoritative pronouncement, I have no hesitation in agreeing with the view of the courts below that the suit was barred by time as limitation started running in this case from the date of the death of the alienor, the same being later to the date of decree of the first appellate court and not from the date of the decree of the High Court. Consequently this appeal fails and the same is hereby dismissed but in view of the intricate question of law involved, the parties are left to bear their own costs throughout.
8. Appeal dismissed.