1971 PLP 514 (SCMR)

SAJJAD AHMAD, J.‑The dispute in this appeal, by special leave, relates to half share in a land measuring 59 kanals, situated in Khacharpur Chak No. 41/N. B., Tehsil Sargodha, the whole of which was originally held in occupancy rights by the predecessor‑in‑title of the parties, named Bakha, under the Colonization of Government Lands Act, 1912. On Bakha's death, the tenancy devolved on his two sons, Saleh and Muhammad, in equal shares. On the latter's death in 1932, his half share of the tenancy was mutated in favour of his widow, Mst. Bhawan, and subsequently on her death in the year 1544, it devolved on his unmarried daughter, respondent Mst. Hayat Bibi, under the customary law, and she was thus entitled to retain it till her marriage or death. It appears that inheritance mutation No. 393 (Exh. P. 6) was sanctioned in favour of Mst. Hayat Bibi, about three months after her marriage, which, vide the copy of entry of the Nikahregister (Exh. P. 1), took place on the 16th of May 1944. Saleh, the uncle of Mst. Hayat Bibi, who died during the pendency of the litigation, and is represented by the present appellants, brought a suit on the 2nd of September 1957, for a declaration that he was the owner or occupancy tenant of the whole of the land, and was entitled to be in its sole possession, to the exclusion of defendants, and that the entries in the revenue papers showing Mst. Hayat Bibi as occupancy tenant to the extent of one‑half, were incorrect and liable to correction. A prayer was added in the suit for the ejectment of Mst. Hayat Bibi from the land, and for a per manent injunction to restrain her from interfering in the possession of the plaintiff. The suit was decreed by the trial Court, but was dismissed, on appeal, by the District Judge, Sargodha, on the sole ground that it was time‑barred. A second appeal to the High Court taken by the appellants was dismissed by a learned Single Judge, who affirmed the view of the learned District Judge that the suit was barred by time. Leave was granted to the appellant on the 6th of ‑May 1965, by a Bench of this Court to examine the correctness of the conclusion of the High Court on the question on limitation. Before filing his petition for leave to appeal in this Court, the appellants had moved an application to the learned Single Judge in the High Court for a certificate for a Letters Patent appeal, which was rejected. The appellants' claim that the time spent by them in pursuing the certificate proceedings in the High Court should be excluded from the period of limitation provided for the petition for leave to appeal in this Court, and the order granting leave in this case, have posed a question whether this can be done. As regards the limitation for the main suit, the view of the learned Single Judge in the High Court is clearly right that the article of the Limitation Act applicable to the suit was Article 120; which is the residuary article, providing six. years of limitation for declaratory suits, the terminus a quo being "when the right to sue accrues." On facts it has been found that Mst. Hayat Bibi continued to remain in possession of half share of the land and received her share of the produce from the cultivating tenant. D. W. Mehra, continuously even after her marriage in the year 1944, followed by the inheritance mutation sanctioned in her name on the 8th of August 1944. The entries in the revenue records also consistently recorded her title and possession in half share of the land. It is therefore, plain that the cause of action for the suit accrued to the predecessor‑in‑title of the appellants when, despite the termination of Mst. Hayat Bibi's interest in the property on account of her marriage in 1944, she continued to hold the property on her own; receiving her share of the produce. The suit instituted by Saleh in the year 1957 was brought long after the six years period of limitation for the suit, as provided by Article 120 of the Limitation Act, had run out, commencing from the date of the accrual of the cause of action when the inheritance mutation was attested in her favour on the 8th of August 1944, in spite of her marriage, which had taken place three months earlier. On the other question, as posed in the leave granting order mentioned above, i.e. whether the time spent in proceedings for obtaining a certificate for appeal to the Letters Patent Bench can be excluded or not, we need to observe that while such time is allowed as a sufficient cause, the petitioner has to account for each day's delay that may occur in that process. In the present case, the appellant's second appeal was dismissed on the 31st of January 1964, but the application for grant of a certificate was made on the 24th of March 1964, long after the period of limitation for the same had run out. The application for certificate was refused on the 18th of January 1965, and the petition for leave to appeal in this Court was filed on the 10th of March 1965. No explanation has been given for the intervening delay. Since the petition was clearly time‑barred, the order granting, leave to the appellants has to be rescinded on that basis. We order accordingly. There shall be no order as to costs of these proceedings. Leave to appeal rescinded.