INDAR RAM Vs. IQBAL MOHD

JUDGEMENT

(1.) This second appeal has arisen under the following circumstances. Amanat Khan, the father of Iqbal Mohammad, Farmaish Khan and Ali Mohammad plaintiffs- respondents, sold, in the year 1926, 29 kanals and 5 marlas of land in dispute to Indar Ram defendant-appellant. Out of the three sons of the vendor, Iqbal Mohammad was a minor at the time of the sale. The aforesaid Iqbal Mohd, in 1988, brought a suit for a declaration to the effect that, the aforesaid sale should not affect his reversionary rights after the death of his father. At the time the suit was brought Farmaish Khan and Ali Mohammad had no subsisting right to bring a declaratory suit in respect of the sale by reason of the operation of the statutes of limitation, Iqbal Mohammad's suit was decreed. Amanat Khan vendor died on 15th November 1944. On 28 November 1944, his three sons brought a suit for possession of the land sold by him to Indar Ram basing their claim to possession on the declaratory decree obtained by Iqbal Mohammad declaring the sale to be invalid except for the lifetime of the vendor. The defenant admitted the claim of Iqbal Mohammad to a decree for possession of his one-third share in the suit land. He, however, contested the claim of the other two plaintiffs on the ground that they could not take advantage of the declaratory decree inasmuch as their own suit for a declaration that the sale should not affect their reversionary rights after the vendor's death had become barred by limitation at the time Iqbal Mohammad brought his suit. The learned trial Judge overruled this contention of the defendant and held that in view of the provisions contained in S.S. Punjab Act (1 of 1920), Farmaish Khan and Ali Mohammad plaintiffs were entitled to the benefit of the decree in spite of the fact that at the time the suit culminating in that decree was brought they had no subsisting right to bring a suit for a declaration in respect of the sale by reason of efflux of time. On this view of the case he granted the plaintiffs a decree for possession of the whole of the land in suit subject to payment of a sum of Rs. 1226-13-0 which in the declaratory decree passed in the suit brought by Iqbal Mohammad had been held to be a valid charge on the land. The defendant appealed to the learned District Judge but without success. He has come up in second appeal to this Court.

(2.) After hearing the learned Counsel for the appellant, I am of the opinion that this appeal is wholly devoid of force. Section 8, Punjab Act (1 of 1920) provides that when any person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom the decree enures for the benefit of all persons entitled to impeach the alienation. There can be no doubt as to Ali Mohamad and Farmaish Khan plaintiffs being entitled to impeach the alienation in question if the land was ancestral qua them and the alienation had not been made for legal necessity. That the land was ancestral qua them and that the sale was not for legal necessity except to the extent of Rs. 1226-18-0 is not disputed. Under the circumstances, their case clearly falls within the purview of Section 8. The mere circumstance that they did not bring a suit to challenge the alienation within the prescribed period of six years cannot be understood to indicate that they ceased to be entitled to impeach the alienation on the expiration of the said period. Except in cases covered by Section 28, Limitation Act, the effect of failure of a person to bring a suit for the enforcement of his right within the period of limitation allowed by the law does not involve a loss or extinguishment of the right itself but merely involves the Joss of the remedy given to him by the law for the enforcement of that right.

(3.) Mr. Jhanda Singh, the learned Counsel for the appellant, strenuously relied on the following observations in the judgment of a Division Bench of the Lahore High Court in Inder Singh V/s. Mian Singh 22 A.I.R.1935 Lah.391: From the words entitled to impeach the alienation used in Section 8, it appears that the Legislature intended to include those persons only who possessed in prasenti any right to challenge the alienation and to exclude those who either possessed no such title or having possessed it had lost it by their own act or by the operation of law. A right once lost cannot be regained and any decree obtained by those whose right subsists cannot entitle those who have lost their right to obtain possession on the basis of that decree. By no stretch of language, therefore, can tho word entitled be taken to include those whose title is not alive. In its ordinary grammatical sense also the word entitled is not equivalent to were entitled or had been entitled or may have been entitled and it will be straining the language too far if the signification of this word is so extends d as to cover that title also which no longer exits and has been extinguished before the defore is obtained. The facts giving rise to the case in disposing of which the above observations were made were briefly these. The dispute related to the property of one Khewan Singh who had adopted one Ganda Singh as his son. Ganda Singh was succeeded by his son Bur Singh who died without issue leaving a widow Mt. Banti by name. Ganda Singh had a brother Hakim Singh whose sons took possession of the property inherited by Ganda Singh from Khewan Singh on the death of Bur Singh. Some time after this, Mt. Banti remarried. On her remarriage, the descendants of Khewan Singh's brothers sued for possession of the property left by Bur Singh on the ground that the line of the adopted eon of Khewan Singh having become extinct the property inherited by the former from the latter which was ancestral in the latter's hands qua the plaintiffs reverted to the plaintiffs as his reversioners. A part of the land in suit was found by the trial Judge to be non-ancestral qua the plaintiffs in Ganda Singh's hands. He, however, felt himself bound by a contrary decision with regard to that land in a previous suit brought by some of the plain tiffs to avoid an exchange of that land effected by Bur Singh during his lifetime. In that suit the land had been held to be ancestral qua the then plaintiffs and the exchange was accordingly declared to be invalid and inoperative against their interests. At the time the suit to avoid the exchange was brought more than six years, had expired since the date of the exchange and the plaintiffs who brought the suit had claimed exemption from the law of limitation on the ground of their minority at the time of the accrual of the cause of action. The other plaintiffs, in the suit brought after the remarriage of Mt Banti, had not joined in the suit brought to avoid the exchange for the obvious reason that they had allowed their limitation for such a suit to expire and were not in a position to claim exemption from the law of limitation on any ground. The question which the Bench was called upon to decide was whether the decision in the previous suit with regard to the character of the land, which formed the subject matter of the exchange, could operate as res juaicata in the subsequent suit for possession. The Bench was of the opinion that the rule of res judicata did not and could not operate in favour of the persons who were not parties to the previous suit and that the aforesaid suit could not be regarded as a representative suit within the meaning of Expln 6 to Section 11. The question of the interpretation to be placed on Section 8 of Punjab Act (1. of 1920) did not directly arise and therefore the observations made by them with regard to the meaning and the implications of the aforesaid section cannot but be regarded as in the nature of obiter aicta.