1983 PLP 3037 (CLC)

(2) If so, could the plaintiffs sue to recover its possession, as heirs of Fateh Khan, by ignoring the sale ? O.P.P. (3) If the sale could not be ignored, can the plaintiffs now plead (in view of section 7 and Article 2 of Punjab Act .I of 1920) that the sale was without consideration and vaild necessity ? O.P.P. (4) If issue No. 3 be decided in favour of the plaintiffs, whether the sale took place for consideration and valid necessity ? O.P.D. (5) Whether the suit for possession simpliciter as heirs of Fateh Khan is within time ? O.P.P. (6) Whether the land detailed in para. (F) of the written statement, additional pleas, had belonged to Mst. Malkan or had been obtained by the defendants in lieu of land belonging to Mst. Malkan ? O. P. P. (7) If issue No. 5 is proved whether plaintiffs are not entitled to their share in its ? O. P.D. (8) Whether plaintiffs are entitled to a decree for possession without paying Rs. 1,000 their share of the mortgage debt ? O.P.P. (9) Whether the suit is barred by waiver or estoppel ? O.P.D. (10) Relief. The learned trial Court held on the issue of limitation that a suit for possession could be filed by the plaintiffs without having sought to file a suit for declaration under custom. The sale was held to be without legal necessity and consideration. It was further held that the suit was not barred by waiver or estoppel. On the first issue it was held that only a part of the land in dispute had been purchased by Naza from Msr. Malkan. The suit was, therefore, decreed on the 26th March, 1956. The learned District Judge held in appeal that the suit for possession could not have been filed without the plaintiffs having sought a declaration about the validity of the sale. He held that the suit for possession ignoring the sale was not competent in view of the provisions of Punjab Act 1 of 1920. He also held the sale to be for legal necessity and consi deration.

5. The only point urged before me by the learned counsel for the appellant is that the suit was competent and was filed within limitation in view of A I R 1924 P.C. 137.

6. In the Privy Council case the plaintiff was a cousin to the former owner of the suit property who married with one `M'. The plaintiff averred that after the death of the owner, `M' had adopted her daughter's son `N' and that 'N' married `B'. He died in 1895. Upon his death `B' took the Hindu woman's estate and died in 1903. Upon her death the plaintiff brought a suit for possession on 1st July, 1912 brushing aside the adoption. It was held that the adoption being void, the plaintiff was entitled to brush it aside and sue for possession within 12 years from the death of the widow. This case is, however, distinguishable since it does not take into consideration the provisions of section 7 of Act I of 1920 according to which a suit for possession after the termination of the life interest was not competent if within six years from the date of the transfer no suit for declaration was filed by the reversionary to challenge the effectiveness of the transfer after the death of the limited owner. In Mst. Nishan Bibi and 26 others v. Fateh Muhammad and others P L D 1974 Lah. 458 it was argued that after the repeal of Act I of 1920 a suit for possession simpliciter by a collateral in the above circumstances was governed by Article 141 of the Limitation Act. It was held that by the repeal of Act I of 1920 it could not be said that Article 141 was revived even in regard to cases which were barred by limita tion under the repealed Act. I, therefore, agree with the judgment of the learned Distinct Judge.

7. The finding about the sale being for necessity and considera tion was not challenged before me. Moreover, it is a finding of fact. Even if it is possible to hold that the suit of the plaintiff is governed by Article 141 of the Limitation Act, the decree has to be sustained on the above finding.

8. I find no merit in this appeal and dismiss it with costs. M. A. K. Appeal dismissed.