PUNJAB STATE Vs. DAYA NAND

JUDGEMENT

(1.) THIS appeal has been filed against the judgment and decree of the Senior subordinate Judge, Gurgaon, dated November 28, 1962.

(2.) THE facts of the case briefly are that Lakshmi Narain alias Soondu (hereinafter referred to as the deceased) son of Ram Sarup alias Bhona of village Taoru Tehsil nuh, was an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887 (hereinafter referred to as the Tenancy Act) in one half share of land measuring 2 bighas 13 biswas comprised in Khasra No. 730 situated in that village. The plaintiff who is the nephew of the deceased was the occupancy tenant of the other half share in the aforesaid land. The deceased was required in a murder case. As he had absconded, his share in that land was attached by the Magistrate 1st Class, gurgaon, under Section 88 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code ). He was, however, arrested to 5 years' rigorous imprisonment on December 30, 1944. On appeal he was acquitted by judgment dated May 29, 1946. Lakshmi Narain deceased died issueless and the plaintiff claims that he is entitled to succeed to his property being his only legal heir. After coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights)Act, 1953 (herein after referred to as the Act), the deceased had become full owner of the said land. The plaintiff is in possession of half of the land comprised in khasra No. 730 as owner and in the other half belonging to the deceased, as a tenant. The defendant is in possession of the share of the deceased as a trustee and is bound to restore it to the plaintiff who is the heir of the deceased. The suit has been contested by the defendant who denied the claim of the plaintiff. It is stated that the plaintiff ceased to be owner of one-half of the property. It is also pleaded that the suit was barred by limitation. The trial Court dismissed the suit. The plaintiff went up in appeal which was accepted by the first appellate Court. The defendant has filed an appeal in this Court against the decree of the first appellate Court.

(3.) THE first contention of the learned counsel for the appellant is that the Civil court had no jurisdiction to try the suit. The learned counsel for the respondent submits that the objection had not been taken by the appellant in the written statement and he cannot be allowed to take it at this stage. After hearing the learned counsel for the parties, I do not find any force in the objection of the learned counsel for the respondent. If there is inherent lack of jurisdiction in a court, the objection can be taken even at the stage of second appeal. No further evidence is required to determine this question. In the circumstances, the question can be raised by the learned counsel for the appellant in this appeal. I am supported in the aforesaid view by a decision of this Court in Mula v. Har Narain, 1966 Pun LJ 216. The question that arises to be gone into is whether the Civil court has the jurisdiction to try the suit. The facts of the case are not disputed. The property was attached by the Magistrate. First Class, Gurgaon, on June 9, 1924, under Section 88 of the Code, as the deceased had been declared an absconder. The appellant thereafter took possession of the property. The deceased was arrested afterwards and convicted on December 30, 1944. He went up in appeal against the judgment which was accepted and he was acquitted on May 29, 1946. This suit was instituted on May 30, 1961. The first appellate Court has held that he died 8 or 9 years prior to the institution of the suit, i. e. , in 1952 or 1953. No application was filed by him for restoration of the property during his lifetime. Section 87 of the Code says that if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The property, of the absconder can be attached by the Court issuing the proclamation under Section 87 at any time, after he is declared as the proclaimed offender. Any person other than the proclaimed offender can prefer objection, regarding the attached property under subsection (6-A) of Section 88 on the ground that he has an interest in such property and that such interest is not liable to attachment under this section, to the Court by which the order of attachment was issued. Such claim shall be enquired into by the Court which may allow or disallow it in whole on in part. If the claim of any person is disallowed in whole or in part by the Court, he may within a period of one year from the date of such order institute a suit to establish the right which he claims in respect of the property in dispute. Subject to the result of such suit, if any, the order of the Court shall be final. Sub-section (6-E) of Section 88 says that if the proclaimed offender appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. According to sub-section (7), if the proclaimed offender does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the State Government. The aforesaid sub-section is as follows:--