SHYAM SUNDAR LAL Vs. DIN SHAH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit brought for ejectment of the defendants from certain plots. The defendants pleaded that there was a patta or lease of the plots in dispute with power to the defendants and their heirs to plant grove and construct building s. The Assistant Collector dismissed the suit. An appeal was preferred to the District Judge who would have heard the appeal even if the suit had been filed in the Munsif's Court, and who was therefore competent under Section 269, Tenancy Act, to dispose of the appeal if the whole matter was before him. Pie upheld the decree of the trial Court. On appeal a learned Judge of this Court has come to the conclusion that the plaintiffs must fail because of the provisions of Section 53-A, T.P. Act, which has a retrospective effect.

(2.) Now before the addition of this section it was held by a Full Bench of this Court in Ram Gopal V/s. Tulshi Ram , that the doctrine of part performance applied in England had no force in India. Later their Lordships of the Privy Council in Pir Bakhsh V/s. Mahomed Tahar , laid down that the doctrine of part performance would not apply to a case where an action had commenced before the enactment of Section 53-A. At p. 659 their Lordships noted that the view expressed in that case must be understood to be referable to the state of the law before the partial importation into it of the English equitable doctrine of part performance. Obviously Section 53-A could not affect a pending action. The learned Counsel for the appellants has relied on a Pull Bench case of the Patna High Court in Ram Krishna Jha V/s. Jainandan Jha A.I.R. 1935 Pat. 291. But there too the action had commenced before the enactment of this new section which was therefore not applicable, and it was on this very ground that the learned Judges distinguished the Privy Council case already quoted above. A number of other cases have been relied upon by the learned Counsel for the appellants, but with the exception of one case they are all cases where the suits were pending when the amendment came into force. Accordingly they are not really in point. The solitary case which may be said to support the contention of the appellants is the case in Cooverji H. Plumber & Co. V/s. Vasant Thesophical Co-operative Housing Society Ltd. A.I.R. 1935 Bom. 91. But that was also a case where there was no writing signed by the contracting parties from which the terms of the transfer could be ascertained. Section 53-A was therefore not applicable. In the course of the judgment the learned Judge however observed that as the amounts were paid prior to 1 April 1930, when Section 53-A came into operation, the section was not applicable. These were observations which were not necessary for the purposes of the case, and Section 63 of Act 20 of 1929 was apparently not brought to their notice.

(3.) The case in Gauri Shankar V/s. Gopal Das , decided by Mukerji, J., was also a case where the suit had been filed in 1929 before the corning into force of Section 53-A. On the other hand the case in Gajadhar Misir V/s. Bechan Chamar , decided by one of us, is a ase directly in point where the suit had been filed after the coming into operation of Section 53-A, and it was held that the provisions of the section governed the case, although the transaction had arisen before the coming into force of the section. In Tota Ram V/s. Ram Lal , decided by a Pull Bench of which one of us was a member, the point was made clear that Sec. 63 of Act 20 of 1929 had prevented only certain specified sections from having a retrospective effect, and therefore by implication it was intended that the other sections should have such an effect. As regards the other sections not specified, the provision in (d) is to the following effect: And nothing in any other provision of this Act shall render invalid or in any way affect anything already done before the 1 April 1930, in any proceeding pending in a Court on that date.