JAMI Vs. NATHU

JUDGEMENT

(1.) The question involved in this appeal is purely one of law but in order to appreciate it it is necessary to record briefly the facts. Pola, who was the occupancy tenant of the suit land, gifted his rights in favour of Nura, who was the son of his wife by her first husband, on 9 March 1897. The gift was followed by possession and after Nura's death, the land passed on to his sons, defendants 1 to 3. In or about 1904, Imam Din and Khairu who were the landlords of the land brought a suit for possession of the occupancy holding in a civil Court. Pola had died by that time. The trial Court held that it had no jurisdiction to entertain the suit.

(2.) On appeal it was held that the plaintiffs could not maintain a suit for possession because Pola's widows were still alive. It appears that the plaintiffs made a prayer for amendment of the plaint and submitted that they be allowed to convert the suit for possession into one for declaration that the gift having been made without the landlords consent was not binding upon them. The appellate Court refused to accept the prayer because it was of the view that limitation period for a suit for declaration had already expired. The Chief Court, to which the plaintiffs preferred a further appeal, maintained the decision of the lower appellate Court. On 26 March 1931 the landlords brought another suit for possession. That also met the same fate as that of the previous suit, the reason being that Mt. Makbir, one of Pola's widows, was still alive and it was held that the landlords were not entitled to possession of the occupancy holding during her lifetime. The present suit was instituted on 20 June 1941 by Haji and others, who are the sons of Imam Din and Khairu, the original landlords. They urged that both the widows of Pola had died, that the gift in favour of Nura was contrary to the provisions of the Tenancy Law, that it did not affect their rights and that the defendants, who were Nura's sons, were liable to be evicted. The defence was that as a result of the failure of the landlords to bring a suit to set aside gift made in Nura's favour, the latter's right to retain possession of the land as an occupancy tenant became indefeasible and on his death the rights devolved upon the defendants by virtue of Section 59, Punjab Tenancy Act. The Courts below accepted the defendant's plea and dismissed the suit. The plaintiffs are the appellants before us.

(3.) It is not denied before us that limitation period available to a landlord to have an alienation made by his occupancy tenant without his consent set aside is six years and that no such suit was brought by the plaintiffs ancestors who were the landlords at the time Pola made the gift of the occupancy rights to Nura. It was, however, urged on behalf of the plaintiffs that since Pola's widows were alive at the time of the gift and the last of them died within twelve years of the date of the suit, no question of limitation arose. Counsel further argued that time for bringing the action started to run not from the date of gift but from the date on which the last of Pola's widows died.