P L D 1974 Lahore 458 (PLP)

the property. registered deed (a) if an entry regard ing the alienation in the Register of Mutations has been Attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, the date on which the entry is attested: (b) if such entry has not been attested, the d ate on which alienee takes physi cal possession of the whole or any part of the property alienated in pursu ance of such alienation; (c) in all other cases, the date on which the alienation comes to the knowledge of the plaintiff. .A suit for possession of anscestral immovable property which has been alienated on the ground that the alienation is not binding on the plain tiff according to custom ; (a) if no declaratory decree of the 6 years As above nature referred to in Article 1 is obtained; (b) if such declaratory decree is 3 years The date on which obtained. the right to sue accrues, or the date on which the decla ratory decree obtain ed, whichever is later. Section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, provides for the repeal, inter alga, of the Punjab Limitation Custom) Act; 1920.

10. Subsection (2) of section 7 as it stood in the original Act provided that

"This Act shall not apply to case; where the death of the last full owner or the termination of the life estate or the death of the legatee-in-enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection (1) according to territories in which they were operative." These provisions have, however, been omitted by the West Pakistan Act XXVIII of 1964. This omission need not detain us for the reason that the omitted subsection did not apply to the present case. It applied only to a ass where the termination of the life estate had occurred before the enforcement of the Act of 1962. In the present case, the gifts took place in the year 1951. A suit under Article 1 of Act I of 1920 could only be filed up to the year 1957 when the widow was alive. No such suit was admittedly instituted. Consequently, if Act I of 1920 had not been repealed, a suit for possession would note have been competent after the termination of the life interest. Under the Act of 1920 an immunity from further challenge to the validity of the gift had been obtained by the appellants. A right had,` therefore, accrued to them that after the expiry of the limitation period as provided by Article 1 of the Schedule to the Act of 1920, no further) suit for possession of the property would be competent at the instance of the collaterals. Clause (c) of subsection (1) of section 4 of the General Clauses Act is, therefore, attracted. It may be stated that before the) enforcement of this Act it was not necessary for the collaterals or rever sioners to file a declaratory suit challenging the alienation which was against custom. In such cases a suit could be filed after the termination by death of the holder of the limited interest. (See Nur Ahmad and another v. Rahim Bakhsh and others (1912 P R 192), Muhammad! Begum and others v. Faix Muhammad Khan (1907 P R 155), Ali Gauhar v. Jowahir and another (1892 P R 120), Ganesha Ram v. Panju Singh (A I R 1919 Lab. 448) and Bhagat Singh v. Sher Singh and others (1914 P R 104). After the enforcement of the Act of 1920 the provisions of this Act were made applicable to the suits to which Article 141 of the Limitation Act was applied. The period of limitation for a suit for possession where declaratory decree was obtained was reduced to three years. If it is held that Article 141 will now apply even to the cases where the right to sue was barred under section 7 of the Act of 1920, it will amount to holding that by the repeal of this Act the provisions of Article 141 are revived. This will render clause (c) of subsection (1) of section 4 of the General Clauses Act nugatory.

12. Even if there had been any enactment of a fresh statute of limitation after the repeal of Act I of 1920, the principle that law of limitation being a procedural law should be deemed to be retrospective, will not have applicability to a case where the right of suit was already barred before the enactment of such new statute of limitation. As held in Bank of India v. Muhammad Ashraf and others (P L D 1965 Kar. 69), the matter is to be decided in accordance with Law of Limitation as in force at the time of institution of that matter and not according to law prevailing at the time when cause of action arose. But this principle will apply where the right to institute that proceeding had not become barred on the date when the amended Act was enforced. The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force, that right is not revived by the repeal of the statute under which the limitation for those proceedings has expired. In Appasami Odayar and others v. Subramanya Odayar and' others (151 A 167) the following statement of law was made by their Lordships of" the Judicial Committee :

"By section 1, clause 13 of Act XIV of 1859, a suit for a share of then family property not brought within twelve years from the date of the last participation in the profits of., it would be barred. This: Act continued in force until the 1st of July 1871, when Act IX of 1871 came into force. Consequently, if there was no participation of profits between 1837 and 1871, the suit would be barred, and the later Acts for limitation of suits need not be referred to. If they altered the law they would not revive the right of suit." In Pearay Lal and others v. Solu Gir (A I R 1946 All. 58) it was held that "in the absence of anything to the contrary if a claim is within limitation according to the old Limitation Act on the date when new Limitation Act comes into force and a proceeding is commenced after the coming into force of the new Act it is the new Act which would govern all decisions on the point of limitation. If, however, the right to sue or the right to apply had already been barred by the provisions of the old Act then in force, then unless there was something in the new Act which could be deemed to apply retrospectively to revive claims which had already become barred, the new Act could not be availed of for the purpose of saving limitation". Reliance was placed for this later proposition. upon Appasami Odayar v. Subrarnanya Odayar and another v. Taruck Nath (20 Cal. 487) and Sachindra Nath Roy v. Maharaj Bahadur Singh (AIR 1922 P C 187). Same appears to be the view taken in Ghulam Haider v. Raj Bhari (P L D 1973 Lab. 372). It was held in that case that an appeal having been abated before the enforcement of the Law Reforms Ordinance XII of 1972, the respondent had acquired valuable right to defeat the claim of the legal representatives to be brought on the record which could not be deprived on the ground that the law of abatement has been abolished by the Ordinance. The same principle is available from two American cases. In Bear Lake Irrigation Co. v. Garland (164 U S 1, 17 S. Ct. 7 L. Ed. 327) it was held that-- "The answer is that the mere enlargement of the time in which to commence the action, at least in a case where the time had not yet arrived in which to file any statement of the plaintiff's claim for a lien, does not affect any right or remedy provided for in the old act. The right, as that term is used in the statute, consisted of the right of sale of property in order, if necessary, to obtain payment of the money due to contractor. The remedy consisted of the taking of certain proceedings by which this sale was to be accomplished. Prior to the arrival of the time when one of these steps was to be taken an alteration of the statute by which the time to take that step might be enlarged was not an alteration of the right or the remedy, as those terms are used in the statute, nor did it in any way affect either ; it was simply an alteration of the mere procedure in the course of an employment of a remedy, the remedy itself remaining untouched or unaffected by such alterna tion. In this case such an enlargement of time to commence an action was given before the time had arrived in which the action could have commenced under the old statute. The new statute was prospective in its operation, even as applied to this case. Of course, if the new act had curtailed the time in which to bring the action, after the time had commenced to run under the old statute, totally different consideration would spring up, and what was a mere alteration of procedure, having really nothing to do with a remedy in the one case, might in the other, most seriously affect it, and hence come within the proviso in question . . . . . . It may be assumed that where a statute creates a right not known to the common law, and provides a remedy for the enforcement of such right, and limits the time within which the remedy must be pursued, the remedy in such case forms a part of the right, and must be pursued within the time prescribed, or else the right and remedy are both lost'." In Wright v. Oakley (5 Mete. (Mass.) 400 ) the Court held as under :

"The difficulty of applying this repealing clause of the revised statutes to the statute of limitation affects the remedy only, and therefore it is inferred, that it does not affect the right, inasmuch as rights and remedies are often, and in many cases very justly, spoken of as contradistinguished from each other. But this is far from being always a just conclusion. It would be more accurate to say, that the statute of limitations bars the remedy, but dues not extinguish the cause of action. But in truth, the statute of limitations though only barring the remedy, does thereby deeply affect the rights of parties . . . . . . In many respects, the rights of parties do depend upon the statute. After such a bar is fixed, parties feel justified in forbearing to take and preserve evidence, and to retain proofs and vouchers, as they would otherwise ; and they feel, and act upon the conviction, that such causes of action are at an end. And although it cannot be said in technical strictness, that a man has a vested right to plead the statute of limitations, so that it could not be taken away by an express act of the Legislature; yet here we are inquiring what the Legislature intended by the use of language not repealing or professing to repeal the statute, but modifying and continuing it, with a general saving of all rights accruing or accrued, and not affecting any act done; and we are of opinion, that the Legislature did not intend to take away the right, power or privilege of being protected, for the future, against actions then actually barred by the pre-existing law." It cannot, therefore, be held that by the repeal of the Act of 1920, Article 141 of the Limitation Act is revived even in regard to cases which) were barred by limitation under the repealed Act.

13. The appeal is, therefore. allowed, the order of the learned District Judges is set aside and the decree of the learned trial Court is restored. As a difficult question of law is involved in this case, there will be no order as to costs. K. B. A. Appeal accepted.