P L D 1960 (W (PLP)

This second appeal by Sikandar defendant is directed against the judgment and the decree dated the 31st of August 1955, passed by Sardar Ata Ullah, Additional District Judge, Gujrat, by which he accepted the plaintiff's appeal and decreed the suit with costs throughout.

2. The relevant facts giving rise to this second appeal are that Allahabad was the last occupancy tenant of the suit land. He made a gift of his rights in the land in favour of Sikandar defendant. In 1946, Sardara plaintiff, who was a reversioner of the donor, brought a suit for a declaration that his reversionary rights would not be affected by the gift. His suit was decreed on the 23rd of June 1947. Before the institution of this suit, however, Allahdad had died on the 8th of February 1944, but as Qutba, a nearer reversioner, was alive, Sardara had filed the suit only for a declaration Qutba died on the 16th of September 1953 and the plaintiff then instituted this suit on the 15th of June 1954 for possession of the land, claiming himself to be the sole heir of Allahdad. The claim was resisted by Sikandar defendant on various grounds which gave rise to the following issues :‑

(1) Whether the plaintiff's suit is within time ? (2) Whether Allahdad's widow Mst. Maryam Bibi has, relinquished in favour of the plaintiff ? (3) In case issue No. 2 is not proved, to what share in the suit land is the plaintiff entitled ? (4) Whether Mst. Maryam Bibi is a necessary party to the present suit and what is the effect of not impleading her ? By his statement made on the 22nd of June 1955, the defendant's counsel gave up the contentions raised in issues Nos. 2 to 4 and accordingly the learned trial Judge did not give any finding on these issues and holding that the plaintiff's suit was barred by limitation, dismissed the suit with costs. On appeal by the plaintiff, the Additional District Judge reversed the finding of the trial Judge on issue No. 1 and decreed the suit with costs throughout. Sikandar defendant has come up in second appeal before this Court.

3. Learned counsel for the appellant has urged that the right to sue for possession of the land had accrued to the plaintiff on the death of the donor Allahdad. It is not disputed that the case is governed by Article 2 (b) of the Schedule to the Punjab Limitation (Custom) Act I of 1920. This article requires that if a declaratory decree has been obtained, then a suit for possession should be brought within three years from "the date on which the right to sue accrues or the date on which the declaratory decree is obtained whichever is later". It is an admitted fact that Qutba, a nearer reversioner, intervened between Sardara plaintiff and the donor Allahdad. It is also an admitted fact that Qutba had consented to the gift made by Allahdad in favour of Sikandar defendant and it was for that reason that the former suit for a declaration had been brought by Sardara plaintiff who was a remoter reversioner. It appears that in that case Qutba was not willing to be impleaded as a plaintiff.

4. The question which falls for determination is whether the right to sue for possession had accrued to the plaintiff on the death of Allahdad or on the death of Qutba. I have already pointed out that Allahdad had died before the institution of the declaratory suit. It appears from the copy of the judgment Exh. P. 4 that no objection was raised by Sikandar defendant that the suit was not maintainable in that form and that the plaintiff should have sued for possession of the land. Learned counsel for the appellant has maintained that the presence of Qutba who had consented to the gift did not debar the plaintiff from suing for possession and that the consent of Qutba to the gift was no impediment in the way of the plaintiff. There is no direct authority in support of this contention. The learned counsel for the appellant, however, has relied on Hafia and others v. Jiwan and others (A I R 1926 Lah. 599), where it was held by Addison, J. that the fact that the plaintiff had no right to sue because some of the nearer reversioners were alive would not stop time from running against him. In that case one Haider had sold the land to Shamas Din who resold it to Jiwan in 1909. Faqir, grand father of Haider, instituted a suit in 1910 for a declaration that his reversionary rights would not be affected by the sale. He obtained a decree on a compromise en the 22nd December 1910 to the effect that upon the death of Haider he could get back the land on payment of Rs.

820. Haider died on the 22nd January 1916. Under the provisions of Punjab Act I of 1920 the suit should have been instituted at the latest on the 2nd May 1921. Faqir was alive then and did not sue up to the time of his death on 1st September 1921. Neither did his son Alam sue up to the time of his death on the 17th May 1922. The suit was instituted by Allah Ditta, son of Alam, a minor, on the 19th of August 1922. It was under these circumstances that the suit was held to be barred by limitation.

5. The facts of the present case stand on a different footing. Under section 8 of the Punjab Act I of 1920 the declaratory decree obtained by the plaintiff enured for the benefit of all the reversioners except Qutba who had consented to the gift, but this does not mean that the consent of Qutba to the gift had the effect of treating him as non‑existing. In my opinion his consent to the gift operated to invest the donee with his own right during his life time. In the circumstances of the case, the gift amounted to the surrender of the donor's right in favour of Sikandar and a further surrender of his rights in his favour by the nearest reversioner, namely, Qubta. So long as Qutba was alive, Sardara plaintiff had no right of immediate possession and could not have sued for possession before the death of Qutba. The consent of Qutba to the gift did not have the effect of accelerating succession in favour of the remoter reversioners.

6. In this view of the matter, the right to sue had accrued to the plaintiff on the death of Qutba, i.e., on the 16th of September 1953. The suit having been brought by him on the 15th of June 1954 was, therefore, not barred by limitation.

7. For the reasons given above, I see no merit in this appeal which is hereby dismissed with costs. K.B.A Appeal dismissed.