P L D 1949 Lahore 251 (PLP)

Jamil Asghar for Respondent. Cornelius, J.‑These three second appeals arise out of three suits for joint possession instituted between the same parties in the Court of the Sub‑Judge of Shakargarh, formerly part of Gurdaspur district. The suits having been decreed, the defendants appealed to the Senior Sub Judge of Gurdaspur who dismissed the appeals on the 8th of August 1947. In order to determine whether the second appeal have been properly instituted in the High Court of Judicature at Lahore it is necessary to mention that since the 15th of August 1947 the District of Gurdaspur, leaving out Shakargarh tahsil, forms part of the Indian Dominion and that Shakargarh tahsil is now apart of Sialkot district in Pakistan. In other words, while Shakargarh tahsil in which the land in suit is situate is under the jurisdiction of the High Court of Lahore, the Court of the Senior Sub‑Judge at Gurdaspur is under the jurisdiction of the East Punjab High Court. A preliminary objection has been taken that since the appeals are from decrees passed by a Court subordinate to the High Court of West (East) Punjab, appeals should lie to that High Court and not to the High Court at Lahore. In reply, Mr. Abdur Rahman, counsel for the appellants relied on Articles 5 and 13 of the High Courts (Punjab) Order, 1947, Article 4 of the Indian Independence (Legal Proceedings) Order, 1947 and three rulings from the Calcutta and the East Bengal High Courts which would be examined in due course. Under Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, all proceedings pending immediately before the appointed day (15th August 1947) in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be con tinued in that Court as if the Indian Independence Act had not been passed, and that Court shall continue to have for the purpose of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day. Any appeal or application for revision in respect of any proceedings so pending shall lie in the Court which would have appellate or revisional jurisdiction over the Court in which the proceedings are pending. It will be observed that since the Senior Sub‑Judge of Gurdaspur had passed the decrees on the 8th of August 1947; there were no proceedings pending in that Court on the appointed day and consequently this Article will not Nor will Articles 5 and 13 of the High Courts (Punjab) Order, 1947 be found more helpful. The object of this Order is to create the High Court of East Punjab and by Article 5 of the Order it has been made a Court of record and shall have in respect of the territories for the time being included in the Province of East Punjab and in the Province of Delhi. all such original appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of the said territories by the High Court of Lahore. Indirectly, of course, it can be argued that since the High Court of East Punjab has jurisdiction only in respect of territories included in the Province of East Punjab and Delhi and since Shakargarh is not a part of East Punjab, that High Court will not be competent to entertain these appeals. Article 12 clause (1) of the Order provides that the High Court at Lahore shall have no jurisdiction in respect of the territories for the time being included in the Province of East Punjab or in the Province of Delhi. Clause (2) provides exceptions to this rule in respect of proceedings pending in the High Court at Lahore on its original side or as a Court of reference and in certain other cases. Such pending cases are to be heard by the High Court at Lahore notwithstanding the provisions of clause (1). Under clause (3), all proceedings pending on the appellate side of the High Court at Lahore shall, where the Court of origin is as from the 15 of August 1947, situated in the Province of East Punjab or in the Province of Delhi, stand transferred to the High Court of East Punjab. The law applicable, in my opinion, is contained in Article 3 of the High Court (Lahore) Order, 1947, according to which "the High Court at Lahore shall continue to exist on and after the appointed day, and shall, save as expressly provided by the High Courts (Punjab) Order, 1947, have all such original, appellate and other jurisdiction as it had im mediately before that day". It follows that if the High Court at Lahore had jurisdiction to hear an appeal from the Court of the Senior Sub Judge at Gurdaspur immediately before the Partition; it continues to enjoy that jurisdiction except to the extent provided by the High Courts (Punjab) Order. In this Order, which I have already partly examined, Article 5 confers jurisdiction upon the High Court of East Punjab in respect of the territories for the time being included in the Provinces of East Punjab and Delhi, while Article 13 clause (1) takes away jurisdic tion from the High Court at Lahore in respect of those territories. Further, by clause (3) of Article 13, all proceedings pending on the appellate side of the High Court at Lahore have been transferred to the High Court of East Punjab where the Court of origin is situated in the Provinces of East Punjab or Delhi. Thus, if the present appeals had on the appointed day been pending in the High Court at Lahore and the Court of origin were now situated in the Province of East Punjab, they would have been automatically transferred to the High Court of East Punjab, but even in that case, since the Court of origin would have been the Court of Sub‑Judge at Shakargarh, not the Court of the Senior Sub‑Judge at Gurdaspur, the appeals (assuming that they were pending at Lahore) would have been decided by this Court. Where, however, neither was there an appeal pending nor was the territory from which these appeals arise placed in the Province of East Punjab, the High Court at Lahore will continue to have by virtue of Article 3 of the High Court (Lahore) Order "all such original, appellate and other jurisdiction as it had immediately before that day." But even if there had been no express provision in the High Court (Lahore) Order to cover these cases, it is obvious that since the decrees in these appeals were passed on the 8th of August 1947, when the Court of the Senior Sub‑Judge at Gurdaspur was subordinate to the High Court at Lahore, an appeal should ordinarily lie to the High Court at Lahore unless its power has been expressly taken away by any Order issued under the Indian Independence Act and since no such order has been issued, the High Court continues to enjoy its appellate powers. None of the rulings upon which Mr. Abdur Rahman relied is in point but the nearest approach to the subject is contained in Pyari Mohan Kundoo v. Bejoy Singh Chopra (A I R 1948 Cal. 305 (F .B.) ). In that case a suit for recovery of certain Market tolls instituted in the Court of Faridpur (now in East Bengal) was decided by that Court before the 15th August 1947 and a second appeal arising therefrom was also decided by the Calcutta High Court before that date. An applica tion for leave to appeal to the Federal Court was filed before the Calcutta High Court on the 17th November 1947. The question was whether the Calcutta High Court had jurisdiction to entertain the application. The answer was in the negative because there was no pending proceedings under Article 13 of the High Courts (Bengal) Order, 1947, which corresponds in all respects to the High Courts (Punjab) Order, 1947. The following passage from the judgment has a bearing on the present case :‑ "If the proceedings were not pending in this Court on the 15th August, then this application for leave to appeal must be regarded as a new or fresh proceeding. The question therefore arises whether this Court can entertain a new or fresh proceeding relating to an appeal from the Courts of Faridpur which are now situate in Eastern Bengal territories. I have already referred to Art. 13 (1), High Courts (Bengal) Order, 1947 which provides that the High Court in Calcutta shall have no jurisdiction in res pect of the territories for the time being included in the Province of East Bengal, though it is provided by Art. 3, High Court (Calcutta) Order. 1947 that this High Court shall have all such original, appellate and other jurisdiction as it had immediately before the appointed day, unless it has been expressly taken away from it by the High Courts (Bengal) Order, 1947." Article 3 of the High Court (Calcutta) Order, 1947 corresponds to Article 3 of the High Court (Lahore) Order, 1947 upon which I have already relied. In Emperor v. Benode Behari Dutt 52 C W N 203 a case was transferred by a Magistrate from Sylhet (now a Pakistan) to Shillong (now in the Indian Dominion) before the 15th August 1947 and act application for setting aside the order of transfer was made to the Sessions Judge of Sylhet who made a reference to the Calcutta High Court on the 14th August 1947, immediately before the appointed day. The question was whether the High Court at Calcutta was competent to hear the reference. It was held, relying on Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, that since the case should be deemed to be pending in the Court at Sylhet it shall continue in that Court and any appeal or application for revision in respect of any proceedings so pending shall lie in the Court which would have appellate or revisional jurisdiction over the Court in which the proceedings are pending. This case is obviously not applicable. In Abdul Hakim Shah v. Shamsuddin Mondal 52 C W N 49petitioner obtained a decree ex‑parte before the appointed day flrtohme the Court of the Munsif at Balurghat. After the appointed day the defendant filed an application in the same Court for the setting aside of the ex‑parte to decree and this application was accepted. The suit was for assessment of rent and damages in respect of: land. The effect of the division of India was that the territory in which the land concerned in the suit was situated fell within Pakistan and any legal proceedings instituted in respect of that land after the 15th of August 1947 were to be instituted in the Court of the Munsif of Bogra, being a Court under the superintendence of the High Court of East Bengal, while the Munsif's Court at Balurghat which had passed the ex‑parte decree and later set it aside fell within the territory appor tioned to the Union of India. It was held by the High Court of East Bengal, relying on the general provisions of the Orders issued under the Indian Independence Act, that after the Partition of India the Court at Balurghat had no jurisdiction to set aside the ex‑parte decree. Holding, therefore, that the High Court at Lahore has jurisdic tion to entertain these appeals, we proceed to discuss their merits. Although notice was sent to the respondent in each appeal only on the point of admission of the appeal, learned counsel appearing for the parties did not object to the appeals being heard on the merits, and indeed addressed arguments to the Court on the merits. The plaintiff filed three declaratory suits under custom against three sales of land effected by one Karam Ilahi in favour of Muhammad Din and Allah Din defendants. Each of these was com promised by a separate agreement more or less in the following form :‑ We have settled our disputes thus, that the plaintiff will receive half of the disputed land on payment of Rs.

700. The plaintiff will not mortgage or sell the land to any other person. If he does so he should do it with defendants Nos. 1 and

2. The amount which the plaintiff had to pay varied in each case. The plaintiff paid the money and asked for possession which the defendants refused. The plaintiff thereupon brought three suits for joint possession of his half share according to the terms of compromise. The defendants contested the suits on the ground that the plaintiff had sold other land belonging to him to persons other than the defendants in order to raise money for making payment to the defendants. The argument was that the terms of the compromise precluded the plaintiff from selling to any person other than the defendants not only the land which was the subject‑matter of compromise but also any other land belonging to him. This argument was not accepted by the original Court or the Court of appeal. In second appeal it was contended that the question was one of the interpretation of a document. We have examined the terms of the compromise which are in Urdu and we have no hesitation in agreeing with the Courts below that the restriction does not apply to land other than that which was the subject‑matter of the three suits. The appeals are, therefore, dismissed but there shall be no order as to costs. K.M.A. Appeal dismissed