1979 PLP 882 (CLC)

MALIK MUHAMMAD ASLAM KHAN, J.-This appeal by leave is directed against the judgment and decree dated 16-11-1977 passed by a learned Single Judge of the High Court, by which upsetting the order of remand, passed by the learned District Judge, a decree for joint possession about 14 kaaals and 11 marlas in Survery No. 851, situate in village Rawli, Tebsil Bagh, was passed.

2. The facts of the case, out of which the present appeal has arisen, are that one Gul Bahar Shah, the father of respondents Nos. 1 to 6 and husband of respondent No. 7, owned 34 kanals and 11 marlas of land in field No. 851, situate in village Rawli, Tebsil Bagh. The appellant herein instituted a declaratory suit in the Court of Sub-Judge Bagh on 12-7-1952 praying for a declaratory decree to the effect that he was in adverse possession of the whole land measuriug 34 kanals, Il marlaa. It appears that Gul Ahmad Khan and Gul Bahar Shah entered into a compromise on the same date through a compromise deed Exh. DD (attached in the Civil File No. 63 entitled-Gul Ahmed Khan v. Syed Gul Bahar Shah). Through this deed Gul Ahmed Khan gave up his suit about 14 kanals and I1 marlas of land and Syed Gul Bahar Shah accepted Gul Ahmed Khan's claim of adverse possession on the suit land up to the extent of 20 kanals only. It appears that the learned Sub-Judge of the time (Mr. Z. H. Naqvi) recorded the statement of Gul Babar Shah to the effect that decree be given in favour of Gul Ahmed Khan, of the entire land measuring 34 kanals I 1 marlas. Thus the learned Sub-Judge fell in error in recording the statement as the compromise was only up to the extent of 20 kanals of land in favour of Gul Ahmed Khan. Because of this error a compromise decree was passed concerning the whole land and not to the extent of 20 kanals as had been settled by the parties. Gul Ahmed Khan again instituted a similar declaratory suit claiming adverse possession, on 6th of May, 1953, against Gul Bahar Shah. In this suit, the claim was about the remaining 14 kanals and I 1 marias of land, perhaps under the impression that previously, the decree passed in his favour was about only 20 kanals of land. The parties again entered into a compromise on the same day and a decree was passed in favour of Gul Ahmed Khan as Gul Babar Shah accepted the claim of adverse possession of Gul Ahmed Khan over the remaining 14 kanals and 11 marlas of land as well.

3. Long after Gul Bahar Shah had died, his heirs, the respondents herein, instituted a declaratory suit on 6-5-1969 praying for a decree for cancellation of the second decree dated 6-5-1953, and the Mutation No 1566 based on that decree. In the plaint, the main attack against the impugned decree was that Gul Bahar Shah had only compromised about 20 kanals of land and the second decree, obtained by Gul Ahmed Khan on 6-5-1953, was fictitious and fraudulent as Gul Bahar Shah had died on 14th March, 1953 about two months before the impugned decree purporting to have been passed on the compromise deed, executed by Gul Babar Shah.

4. The suit was resisted, inter alia, on the ground that it was time barred and that Gul Bahar Shah was quite alive on the relevant date and had himself executed the compromise deed in the Court on the basis of which the impugned decree was passed.

5. The learned Sub-Judge upheld these objections and dismissed the suit vide his judgment and decree dated 29-5-1971 (wrongly described as of 19 5-1971 by the High Court). The respondents preferred an appeal before the District Judge against the judgment and decree of the Sub-Judge, who came to the conclusion that the trial Court bad not given any clear finding on the issue framed necessitating rehearing of the case. The Court, therefore, framed an additional issue vide its order dated 30th September, 1975. Thus the case was remanded for rehearing on the issues already framed by the trial Court and on the additional issue as well, with the direction that the case be decided afresh. Since through this order, the judgment and decree, passed by the Sub-Judge was upset, Gul Ahmed Khan preferred a second appeal against the order of remand in the High Court. The learned Chief Justice of the High Court came to the conclusion that Gul Babar Shah was probably alive on the date of the impugned decree as the respondents could not prove his death earlier. Another finding given was, that as Gul Ahmed Khan had himself surrendered his claim of adverse possession qua 14 kanals, 11 marlas at the time of passing of first compromise decree dated 12-4-1952, his suit of 1953 was not maintainable either in law or on fact and that the second consent deree did not create any title in favour of Gul Ahmed Khan. The Court also came to the conclusion that since respondents Nos. 1 to 6 were minors at the time of the passing of the decree, the suit was not time barred. So far as respondent No. 7, Mst. Gulzar Nishan, widow of Gul Babar Shah was concerned, it was opined that as she was an illiterate village woman, she could not be deprived of her rights. The learned Chief Justice also remarked in the concluding para of the judgment that as no appeal lay against the order of remand, he was not treating the appeal as a revision. But in exercise of his powers of superintendence as well as revisional jurisdiction, he was taking notice of the case suo motu. On these grounds the learned Chief Justice upset the order of the District Judge as well as the judgment and decree passed by the trial Court and substituted it with his own judgment and decree, whereby a decree for joint possession for 14 kanals and 11 marlas of the land, in survey No. 851, was passed in favour of the respondents. It is against this judgment and decree that the appellants have come up in appeal before us.

6. The first point taken up by the learned counsel for the appellant is that the respondents' suit was clearly time barred as the period of limitation had started running during the very lifetime of Gul Bahar Shah. On this basis it was contended that the mere fact of respondents Nos. 1 to 6 being minors, and respondent No. 7 being an illiterate widow, does not in any way bring the suit within limitation. The learned counsel has subjected to strong criticism the following remarks of the learned Chief Justice of the High Court :- " . . in so far as widow is concerned, in view of the fact that she is an illiterate village woman, entitled to only 1 /8th share of the property, I think, there is nothing in law that she must necessarily be deprived of her share especially in the special circumstances of this case."

7. We have given due consideration to this plank of attack concerning the suit being time barred. In our view the objection is well founded. It is to be noted that the learned Chief Justice had come to the conclusion that the respondents could not prove the death of Gul Bahar Shah at the time of the passing of the impugned decree and in learned Chief Justice opinion Gul Babar Shah probably was alive at that date. The trial Court had also come to a definite conclusion, on the basis of testimony, that Gul Bahar Shah was alive on the date of the impugned consent decree and ha himself entered into compromise with Gul Ahmed Khan. This leaves n doubt that the period of limitation had started running in the very lifetime of Gul Bahar Shah and the fact that the respondents Nos. 1 to 6 were minor could not arrest the running of the period of limitation. Therefore, the suit was rightly held time barred by the trial Court. It is elementary that the benefit of disability provisions under sections to 8, Limitation Act, can be claimed only if the disability exists at the time from which the period of limitation is to be reckoned. This refers to initial and not subsequent disability and if the period of limitation has already started running before the cause of action accrues to the minors sections 6 to 8, Limitation Act can be of no avail to them as in such a case the title, to the suit land will be extinguished by virtue of section 28 of the Limitation Act. In the case before us, it cannot be denied that after Gul Bahar Shah had entered into compromise with appellant Gul Ahmed Khan in consequence of which the Court passed the compromise decree, the period of limitation had started running from that very date and in the very lifetime of Gul Bahar Shah. Since once the period of limitation gets started no subsequent event or disability can stop its running, the minority of the respondents in this case cannot save their suit from being hit by limitation which had got started in the lifetime of Gul Bahar Shah. :.;. We also agree with the contention of the learned counsel for the appellant that section 3 of the Limitation Act makes no distinction between an `illiterate village woman' and other persons so far as the application Limitation Act or the running of the period of limitation thereunder is concerned. Sections 3 and 28 of the Limitation Act apply to all irrespective of the illiteracy or the gender or the persons involved. In view of this legal position we are unable to lend support to the views of the learned Judge that an `illiterate village woman' cannot be deprived of her rights in this case. Her suit is clearly time barred and cannot be saved on the ground that she is an illiterate village woman.

8. Another point canvassed is that since the learned Chief Justice of the High Court did not treat the appeal as a revision petition and no appeal lay against the impugned order, the Court had no power to interfere, as it, has done, under its powers of superintendence. The powers of superintendence, ' it is contended, so far as their judicial aspect is concerned, have no independent existence except those obtaining under the revisional jurisdiction of the Court. In view of this, it is pleaded, that the learned Judge had no power to interfere with the impugned order, which is a judicial order, in exercise of High Court's powers of superintendence. The argument further developed is that the power of superintendence of the High Court are only, referable to section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and these powers are administrative and not judicial. We find little force in this contention because, as appears from the impugned judgment and decree, the learned Chief Justice had passed the order not only in exercise of power of superintendence but also in exercise of revisional jurisdiction vested in the High Court. It is not contended that the High Court had no revisional jurisdiction or that it could not pass the impugned judgment and decree suo motu as section 115, C. P. C. clearly' vests the High Court with these powers. Hence we hold that the impugned judgment and decree of the High Court are not assailable from this angle. We would also like to state that section 46(1) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which reads as : "

46. High Court to superintend and control all Courts subordinate to " it, etc.-(1) The High Court shall superintend and control all other Courts that are subordinate to it." is akin to Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973. These supervisory powers are vested in the High Court for overseeing the function of the subordinate judiciary, administratively as well as judicially . ... Therefore it cannot be said that powers of superintendence under section 46(1) are administrative only. Who are, therefore, of the view that the powers of superintendence conferred under section 46(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 include judicial as well as administrative superintendence of the subordinate judiciary, but the judicial powers, though wider than those conferred on the High Court under section 115, C. P. C., are to be used rarely and not as a matter of routine. They are certainly no substitute for the revisional powers conferred under section 115, C. P. C.

9. Lastly it is contended that since the challenged decree of 6-5-1953 was a compromise decree, based on the consent of both Gul Ahmed Khan and Gul Babar Shah, it could not be interfered with even in exercise of revisional jurisdiction by the High Court, as the parties to such a compromise decree and the persons claiming through them were bound by it unless it is shown that this decree was based on fraud. We rind much force in this contention. It may be noted that all that the respondents claimed in their suit in challenging this decree, was that Gul Bahar Shah was not alive at the time of alleged compromise deed or the decree passed thereon. This allegation was found by the trial Court as unsubstantiated which rather held that Gul Bahar Shah was very much alive at the time of the passing of the consent decree. Even the learned Chief Justice of the High Court has not controverted this finding. The learned Judge has however, based his view on the reasoning that after giving up his claim of adverse possession about 14 kanals I1 marlas in the year 1952, Gul Ahmed Khan could not validly lay a claim of adverse possession to this very land in 1953. We think that this approach, with all respects, could be available to a third party but not to Gul Bahar Shah or the persons claiming through him. Because even if the decree of 1953 be deemed as collusive decree (though the learned Judge has not termed it as such), the respondents who base their claim through Gul Babar Shah, cannot wriggle out of the impugned decree as even Gul Bahar Shah could not challenge it on the basis of its being collusive decree. It is well settled that the parties to a collusive decree, are bound by it and a collusive decree, qua the parties thereto, is as much effective and vali as a decree passed after contest. The learned counsel for the appellant h referred to A I R 1932 Pat. 170 (2), in support of this contention that a Part to a compromise decree, in absence of proof of fraud,- is bound by it. W D may also refer to A I R 1934 Cal. 799 and A I R 1941 Bom. 77 in support of our view that even a collusive decree is binding and effective against the consenting parties to the decree, and the persons claiming through them are also barred from challenging such a decree. Therefore, if at the most the challenged decree of 1953 is taken as a collusive decree, which it seem to be, Gul Bahar Shah or the respondents who have no independent claim except through Gul Bahar Shah, cannot legally challenge the decree. In view of this legal position, we are unable to support the judgment and decree, passed by the learned Judge of the High Court. We have also considered, though it is not argued, the question of sending back the case to the trial Court as per remand order of the learned District Judge. In the circumstances of this case, we are of the view that neither ends of justice will be met, by sending the case back, nor any useful purpose will be served. The learned District Judge had remanded the case on the ground that issues Nos. 2 and 3 were vague needing an additional issue. We are of the view that it will be sheer waste of time to remand the case to the trial Court as the parties were fully alive to the question as to whether Gul Ahmed Khan could bring a second suit and get the decree dated 6.5-1953 after he had earlier compromised in favour of GuI Bahar Shah concerning 14 karrals and 11 marlas of land. In fact this is a legal issue which does not need the production of any evidence and has been thoroughly discussed before us. In view of this fact of the matter, we do not propose to remand the case and therefore, restore the decree passed by the trial Court for the reasons listed above. The net result is that we accept the appeal by upsetting the judgment and decree passed by the High Court as well as the order of remand passed by the District Court and restore the one passed by the trial Court, resulting in the dismissal of the suit. No order as costs. S. A. H. Appeal accepted.