P L D 1960 (W (PLP)

KAIKAUS, J.‑

This appeal arises out of a suit wherein one brother claims that in the horse‑breeding grant which stood in the name of his brother he too had a share.

2. The appellant before us is Raja plaintiff. His father was Jiwan who had four sons, Shame Din, Qutab Din, Raja and Imam Din. On the 20th of October 1905 Jiwan acquired a horse‑breeding grant comprised of 454 Kanals, situated in Chak No. 67/SB, Tehsil Bhalwal, District Shahpur. In the year 1931 he acquired another grant comprising 2 squares, in the same village, by purchase. This second grant was acquired in the name of his son Qutab Din. On the 20th of March 1931, Jiwan executed a document (Ex. D. 7) wherein he stated that the second grant had been acquired by raising a loan from one Jiwan Mal, that this loan was to be repaid by all his sons equally, that Raja appellant had agreed to pay his share of the loan, i.e. Rs. 6,750 and that in consequence Raja had been given one square out of the first grant. He declared that after his death Raja would remain the owner of this one square. The other square in the first grant was to go to Shamas‑ud‑Din. So far as the second grant is concerned, which had been acquired in the name of Qutab Din, it was to be owned by Qutab Din and Imam Din. On the 4th April 1935 Shamas‑ud‑Din executed a registered agreement wherein he stated that he and Raja had been cultivating the first grant in equal shares and had been jointly enjoying its produce ; that the other two brothers were separate from them and the second grant was for their benefit ; that Raja would remain owner of one‑half of the first grant ; and that if Shamas ud‑Din or his heirs ejected Raja from the land, he would be paid Rs. 6,

500. This deed was attested by Qutab Din as well as Jiwan. On the 8th of May 1935 Jiwan died. The first grant, which stood in the name of Jiwan and in which, according to the documents mentioned above, Shamas‑ud‑Din and Raja had equal shares, descended, in accordance with the rule of primogeniture which governed horse‑breeding grants, to Shamas ud‑Din. Out of this land, however, 1011 Kanals were given to Mst. Jiwani, the mother of the parties, for maintenance. Raja was at that time in possession of 198 Kanals of land out of the first grant. On the 11th of November 1937, Shamas‑ud‑Din got a notice of ejectment under the Punjab Tenancy Act served on Raja. Raja filed a suit to contest his liability to ejectment which was dismissed and even an appeal against the decision was dismissed on the 21st of July 1939. Raja was actually ejected from this 198 Kanals of land on the 24th of June 1940. Raja continued, however, along with his brother Imam Din, in possession of 101 Kanals of land which had been granted to Mst. Jiwani for maintenance. On the 8th of July 1947, Shamas Din acquired proprietary rights in the whole of the first grant. On the 21st of February 1949, Mst. Jiwani died. On the 28th of April 1948, Raja and Imam Din filed a suit claiming that they were entitled to 5/8ths of the first grant. The allegations in the plaint of this suit were that the first grant was the joint property of all the four brothers but Qutab Din had given up his share and this share had passed half to Shamas‑ud‑Din and half to Imam Din and Raja, with the result that they became entitled to 5/8ths of land. This suit was dismissed, but on appeal it was withdrawn with permission to file a new suit. The present suit was filed on the 16th of January 1951 by Raja alone claiming one‑half share of the first grant. The pleas in this plaint are‑ (1) that the grant had been acquired jointly ; (2) that by a family settlement it had been agreed that Shams‑ud‑Din and Raja plaintiff would be entitled to the first grant in equal shares ; (3) that the plaintiff had been in possession of 101 Kanals of land and that Imam Din had been helping him ;and (4) that all impediments in the way of the plaintiff becoming a joint owner of land had disappeared, firstly, in the year 1912 when the rule of primogeniture was abolished and, secondly, by the acquisition of proprietary rights in 1947.

3. Shamas‑ud‑Din defendant pleaded that the grant was not a joint acquisition but belonged to the father and had devolved on him by the rule of primogeniture. He did not even accept that he had executed the registered agreement of 5th of April 1935. He pleaded at the same time that the agreement was the result of undue influence, and that it was void on account of want of consideration. He pleaded too that the plaintiff was not in possession and that the suit was time barred. The pleadings of the parties gave rise to the following issues :‑ (1) Whether the mare, in consideration of which the land in dispute was granted to Jiwan, father of the parties, bad been purchased by Jiwan and then had been given by him to the parties in equal shares ? If so, when and whether this gift was made before the acquisition of the grant or after it ? What is its effect ? (2) Whether as a result of a settlement between the parties and their father Jiwan, the land in dispute came to be held only by the plaintiff and defendant No. 1 in equal shares ? If so, when ? (2‑A) Whether in respect of the said settlement defendant No. 1 executed the agreement dated 4th April 1935 in favour of the plaintiff ? (2‑B) Whether the said agreement was without consideration and was the result of undue influence ? If so, what is its effect ? (2‑C) Whether the said agreement and settlement being opposed to law are void ? (2‑D) Whether the settlement and agreement are valid and enforceable on the ground that proprietary rights in the land in dispute have now been acquired ? (3) Whether defendant No. 1 is not entitled to have the plaintiff ejected unless he pays Rs. 6,500 to him ? (4) Whether the present plaint was in accordance with the order passed by the Senior Civil Judge granting the plaintiff permission to bring a fresh suit and in case any relief was not in accordance therewith, what order should be made with respect to the same ? (4‑A) Whether any of the present reliefs is not entertainable in view of Order II, rule 2, C. P. C. ? (5) Whether the plaintiff's suit is barred by time? (6) Whether defendant No. 1 obtained a decree against the plaintiff for his ejectment out of the land in dispute and got him ejected in execution of the same ? If so, when and with what effect ? (7) Relief.

4. The trial Court held that the grant was not proved to have been joint from the beginning. It found, however, that there was a family settlement binding on Shamas‑ud‑Din. The issue of limitation was found in favour of the plaintiff and the suit for a declaration that the plaintiff was entitled to one half of the grant was decreed. The findings of the learned Senior Civil Judge were affirmed on appeal by the District Judge and the appeal was dismissed. On second appeal, the learned Single Judge of this Court did not go into the merits of the case because he found the suit to be barred by limitation. The reasoning of the learned Single Judge is that the suit was one for a declaration which was governed by Article 120 of the Limitation Act, that the cause of action for filing the present suit had arisen on the 24th of June 1940 when the plaintiff was ejected from 198 Kanals of land and, therefore, this suit which was filed on the 16th of January 1951 was time‑barred.

5. We are not inclined to agree with the reasoning of the learned Single Judge in so far as it relates to that land from which the plaintiff was not ejected. The ejectment was in respect of 198 Kanals of land only. Any suit for a declaration with respect to that land would be barred six years after the ejectment. In fact a suit for a simple declaration with respect to that land does not lie at all as that land continues to be in the possession of Shamas‑ud‑Din. But the ejectment would not necessarily start time in respect of land from which the appellant was not ejected. The ejectment was in pursuance of a notice which too was only in respect of 198 Kanals of land. Suppose Raja had in fact filed a suit within six years of his ejectment for a declara tion or for possession, but had confined the suit to the area of which he had been dispossessed and had either got a declaration in his favour or a decree for possession, and suppose then that after the death of Mst. Jiwani on account of a dispute between the parties he had filed a second suit for a declaration relating to the land which had been given to Jiwani. Could it be said that the second suit was barred by time? If in such circumstances the second suit was not barred by time, then the present suit also could not be barred except with respect to the area in dispute in the previous litigation.

6. The cause of action for the present suit, in so far as it relates to the land which had been given to Mst. Jiwani for maintenance and which had been in the possession of Raja is altogether a new one. (We may state here that on going through the record we find Raja to have been in possession of the land granted to Jiwani either personally or through his brother‑in‑law A or father, in‑law, and no arguments have been addressed to us negativing his possession.) This cause of action arose after the death of Mst. Jiwani, out of the threat of Shamas‑ud‑Din to eject Raja from this part of land. That the said threat would constitute 4 cause of action for a suit cannot be denied for Raja is entitled to approach the Civil Court for relief with respect to this threat and when he does approach the Court what is the relief he can ask for ? Being in possession he can only file a suit for a declaration and injunction. It could not be said that a right to relief which arises out of a threat of dispossession already stands time‑barred on account of a threat or actual eviction which did not relate to the property which is now the subject‑matter of the threat.

7. But quite apart from the whole of this reasoning there is an aspect of the case to which the attention of the learned Single Judge had not been drawn. The suit is not only for a declaration but also for injunction restraining the defendant from interfering with the possession of the defendant. This relief relates only to the land which is in the possession of the plaintiff, that is 101 Kanals granted to Mst. Jiwani. In so far as the relief claimed is an injunction there could be no question that the cause of action arose only on the death of Jiwan when Shamas‑ud‑Din threatened to eject Raja from the land. Raja was not bound to ask for a declaration at all in the present suit. He may have sued only for an injunction, and in that case the previous litigation could hardly be relied upon to support a plea of limitation. There was never a threat of dispossession in respect of this land before and a cause of action for injunction arose only after the death of Mst. Jiwani. It is true that in the plaint the relief of injunction is claimed only as a consequential relief so that there is a possible argument (no such argument has been put forward before us by the learned counsel for the respondent) that if the declaration was time barred, the relief of injunction had to be refused. But we can overlook technicalities. It was not necessary for the plaintiff to call the relief of injunction a consequential relief. He may have sued for a declaration as well as an injunction or he may have sued only for an injunction.

8. We hold, therefore, that the suit is not time barred in respect of 101 Kanals of land which were in possession of Mst. Jawani. In view of the fact that we were not agreeing with the learned Single Judge on the question of limitation, we called upon the parties to argue the case on merits. As the defendant respondent was the appellant before the learned Single Judge, we called upon him to begin and to attack the decree of the learned District Judge. There are only two points he argued. The first is that the agreement. Ex. P. 7, executed by Shamas‑ud- Din was void because it was a transfer of spes successionis. The second is that the agreement was without consideration. As regards the first point, it is true that no rights as owner or as tenant could pass to Raja on the date when the agreement was executed because Shamas Din was not possessed of any right in the land. It is true also that in spite of all that he may say in the B deed, the property would devolve upon him in accordance with law. But the agreement Ex. P. 7, although it could not operate to transfer rights in the land, can be the basis of a claim to have the land transferred. It is an implication of the agreement that whenever Shamas‑ud‑Din acquired an estate which is capable of transfer, he will transfer it to Raja. On the date when the agree 1pent was executed, Jiwan was alive and Shamas Din had only a spes successionis which could not be transferred. But when Jiwan died Shamas Din becomes vested with rights in the land and the agreement became enforceable (apart from any other legal objection to its enforcement) as an agreement to transfer. As long as Shamas‑ud‑Din was only a tenant, he could still not transfer any right in the land except with the permission of the Commissioner under section 19 of the Colonisation of Government Lands Act and, therefore, a transfer could not be effected, but when Shamas Din acquired proprietary rights in 1947, even this obatacle to the transfer of rights was removed and the plaintiff became entitled to a transfer in his favour. It is true that the correct form of the present suit would be ore for a transfer of the ownership rights rather than a declaration that the plaintiff is the owner of the land in dispute. But no objection has been taken before us or in any of the Court`s below on this ground. Generally, suits have been filed by persons in the position of the present plaintiff for a declaration of the ownership and have been decreed, although technically they should have been suits for a transfer or conveyance.

9. The second objection too has no force. Consideration for the agreement did exist for Raja had taken upon himself the responsibility for payment of Rs. 6,

500. It is not necessary that the person who receives benefit from consideration should be the promisor himself. Benefit received by a third person may be good consideration for a contract. It does not matter, therefore, in the present case that the benefit of Rs. 6,500 was to go either to Jiwan the father, or to the other two brothers, i.e., Qutab Din and Imam Din, who were to share the second grant. Shamas Din could very well have entered into an agreement on account of consideration that was passing to Jiwan or Qutab‑ud‑Din and Imam Din. Another reply to this objection is that we are dealing with a family settlement and the settlement of family affairs in a particular manner by which a party stands to get some benefit is by itself good consideration for that party for agreeing to the settlement. In the present case, Shamas Din was also to get the benefit of this arrangement for he would inherit one‑half of the first grant on the death of Jiwan. It was an implied condition c of this family settlement that Jiwan would not dispose of the first grant during his lifetime. Had Shamas Din refused to agree to the family settlement, Jiwan may well have transferred the grant with the permission of ‑the Commissioner, in accordance with section 19 of the Colonization of Government Lands Act, to the other sons or to some other person.

10. This appeal is partially accepted and the plaintiff is granted a declaration that he is a co‑sharer to the extent of one half in 101 Kanals of land which was in possession of Mst. Jiwani, his mother. In view of the divided success, parties will bear their own costs throughout. A.H. Appeal partly accepted.