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Second Appeal No. 189 of 1953 decided on 4th October, 1954 from the decree of Muhammad Abdul Latif Shah, District Judge, Lyallpur, dated the 11th April 1953, affirming that of Ch: Aziz Ahmad Waraich, Senior Civil Judge, Lyallpur, dated the 29th November 1952.
Schedule, Art. 2‑Does not apply in case of land left in East Punjab.
One Shadi who was governed by agricultural custom of the Punjab made a sale of 53 kanals and 2 marlas of land out .of his land in East Punjab in 1930 in favour of Mst. Began his wife. The collaterals filed a suit for declaration that the alienation would not affect their reversionary rights and got a decree. About 20 years ago Shadi died sonless and his property was mutated in the name of his widow. At the time of Partition the reversioners as well as the widow came over to Pakistan. On the 6th of December 1947 Mst. Began died. A question then arose as to who was entitled to allotment of evacuee land in lieu of the pro perty that belonged to Shadi. Fazal son of Mst. Began from her previous husband disputed the claim of the collaterals of Shadi to receive land in allotment in lieu of the whole of the land left by him. On this the collaterals filed the present suit against Fazal for a declaration that they were entitled to the whole of the land left by Shadi deceased.
Fazal accepted the claim of the plaintiffs except with respect to 53 kanals and 2 marlas of land which had been alienated by the deceased in favour of Mst. Began. He took up the plea that as the plaintiffs had not filed any suit for, possession within three years of the death of Mst. Began under article 2 of the schedule to the Punjab Limitation (Custom) Act of 1920, their claim was barred by limitation.
Held : A suit for possession against a trespasser is not governed by Article 2 of the Punjab Limitation (Custom) Act.
The land in question being in the possession of Custodian of Evacuee Property in East Punjab, The plaintiffs them selves had no right of suit at all.
Where a public officer representing both parties to suit was in possession, limitation would not run and section 28 Limitation Act did not apply in such a case.
The suit therefore was not time‑barred.
Ss. 16 and 20 Land situate in East Punjab in India‑Pakistan Courts have jurisdiction to decide ownership of such land so as to deter mine question of parties' right to allotment of land in Pakistan in lieu of such land.
The question was, who was owner of certain land in East Punjab so as to determine parties' right to allotment of land in Pakistan in lieu of the land in East Punjab. The contest was between the reversioners of the deceased owner of such land in East Punjab on the one side, and an heir of the vendee who had bought the land from the deceased vendor‑owner, the sale having been set aside in consequence of a declaratory decree under custom in favour of the reversioners.
Held that Pakistan Courts had jurisdiction to deal with the matter.
The test for deciding whether Courts had jurisdiction is whether Courts can pass an effective decree.
Whenever it is possible for the Courts to pass a decree which would help one party or the other to secure his rights, there is no reason why jurisdiction should be declined.
What the plaintiffs wanted to establish in this case was their right to apply for allotment. They were not asking for possession of the property or for any relief directly connected with the property in India.
If the test of jurisdiction was that property within jurisdiction should be affected it was clear that the present suit satisfied the test.
Territorial jurisdiction in so far as the Courts in Pakistan are concerned is really a distribution of business and is not truly a question of jurisdiction as will appear from section 21 of the Code of Civil Procedure. The defect of territorial jurisdiction is really an irregularity and is not a defect of jurisdiction.
Rajagopala Pandarathar and others v. Tirupathia and another A I R 1926 Mad. 421 ref.
Ramlal Hargopal v. Kisanchandra and others A I R 1924 P C 95 distinguished.
Dicey's Conflict of Laws, Rule 20, Exceptions.
Bashir Ahmad, for Appellants.
Ali Ahmad Khan Lodhi, for Respondent.
KAIKAUS, J.‑
One Shadi, who was governed by thel agricultural custom of the Punjab, had some land in village Silala in Jullundur District. In 1930 he made a sale of 53 kanals and 2 marlas of land in favour of Mst. Began his wife. The collaterals filed a suit for a declaration that the alienation would not affect their reversionary rights and got a decree that it would not affect their reversionary rights except to the extent of Rs. 500 on payment of which sum the reversioners would be entitled to take possession of the land. About 20 years ago Shadi died sonless and his property was mutated in the name of his widow. At the time of the Partition of India it appears that the reversioners as well as the widow came over to Pakistan. On the 6th of December 1947 Mst. Began died. A question then arose as to who was entitled to allotment of evacuee land in lieu of the property that belonged to Shadi, for allotments of evacuee property in the Punjab are based on .the property to which the party making a claim to A allotment was entitled in East Punjab. Fazal who is a pichhlag son of Mst. Began disputed the claim of the collaterals of Shadi to receive land in allotment in lieu of the whole of the land left by him. On this the collaterals filed the present suit against the said Fazal for a declara tion that they were entitled to the whole of the land left by Shadi deceased. .
Fazal accepted the claim of the plaintiffs except with respect to 53 kanals and 2 marlas of land which had been alienated by the deceased in favour of Mst. Began. As regards this land he took up the plea that as the plaintiffs had not filed any suit for possession within three years of the death of Mst. Began under article 2 of the schedule to the Punjab Limitation (Custom) Act of 1920, their claim was barred by limitation. Both the Courts below gave effect to this plea and dismissed the suit in respect of 53 kanals and 2 marlas of land. This appeal has been filed by the plaintiffs.
The present suit is one for a declaration under section 42 of the Specific Relief Act. It is governed by Article 120 of the Limitation Act and limitation would begin when the right which the plaintiffs are claiming was denied. The denial had in this case admittedly taken place within a period of, six years and from this point of view, the suit would obviously be within time. It is urged, however, that the plaintiffs have by either failure to file a suit within three years of the death of Mst. Began in accordance with article 2 of the Schedule to the Punjab Limitation (Custom) Act of 1920 lost their rights in the property by virtue of section 28 of the Limitation Act which provides that on the expiry of the period prescribed for recovery of posses sion of immovable property, the right to that property would be extinguished. Assuming that section 28 does apply even to cases where limitation is governed by some special or local Act, I am of the opinion that in this case the plaintiffs have not lost their rights. In order that the plaintiffs should so lose their rights it would be necessary to show that the property was in fact in the possession of the aliened. I may quote here article 2 of the Schedule to the Punjab Limitation (Custom) Act for convenience
| Description of Suit | Period of Limitation | Time from which period begins to run |
| 2. A suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom. | 6 years | |
| (a) If no declaratory decree of the nature referred to in article 1 is obtained ; |
| Firstly:‑ If the alienation is by a registered deed the date of registration of such deed. |
| Secondly :‑If the alienation is not by a registered deed. | ||
| (a) if an entry regarding the alienation in the register of mutations has been attested by Revenue Officer under the Punjab Land Revenue Act, 1887, the date on which the entry is attested ; | ||
| (b) if such entry has not been attested, the date on which the alienee takes physical possession of the whole or any part of the property alienated in pursu ance of such alienation ; | ||
| (c) in all other cases the date on which the alienation comes to the knowledge of the plaintiff. | ||
| (b) if such declaratory decree is obtained. | 3 years | The date on which the right to sue accrues or the date on which the declaratory decree is obtained which ever is later. |
This article applies to a case where the alienee is in possession of the property in dispute and would have no application to a case where a person other than the alienee or his representative‑in‑interest is in possession of the property. The Punjab Limitation (Custom) Act regulates only the relations of the alienee and the reversioners of the alienor. This would be apparent from the fact that a suit for the usual declaration is to be filed only against the alienee. A trespasser though in possession would not be made a party to the suit for declaration at all. Under Article 2 the limitation for a suit for possession depends on the existence or non‑existence of the declaratory decree and evidently the article applies only when a suit for possession is filed against the person against whom a declaratory decree has been obtained. In the present case there is no proof the first instance that after the death of Mst. Began heirs remained in possession of the land. In fact parties had come over to Pakistan at the time of the Partition and the death of Mst. Began took place in the end of 1947. When Mst. Began came over to Pakistan an trespasser may have taken possession of the land. A suit I for possession against such a trespasser would not be governed by Article 2 of the Punjab Limitation (Custom) Act I. This is one reason why the plaintiffs cannot ' lose their rights. Another reason is the existence of evacuee laws in India. Just as the property of the evacuee from Pakistan vests in the Custodian of the Evacuee property in Pakistan the property of those who have left East Punjab or account of the disturbances vests in the Custodian of Evacuee Property in India at least from the time of Parti tion of India. The plaintiffs themselves, therefore, had no right of suit at all, and so far as the Custodian is concerned he may very well have taken possession of the property ever before the death of Mst. Began and in any case within three years of her death. No suit for possession would be necessary in such a case for the Custodian represents both the parties to this litigation. Where a public officer representing both parties is in possession, limitation would not run and section 28 would have no application. Although in the records he may be holding this possession nor on behalf of the person entitled to it but on behalf of any other person, his possession "Would be on behalf of the person in fact entitled. The Custodian cannot file a suit as representing one person against himself as representing another person and no question of expiry of limitation arises. I would, therefore. hold that the present suit is not barred by limitation.
Before me a new contention has been raised on behalf of the defendant‑respondent. It is argued that the property in dispute being in India, the Courts in Pakistan have no jurisdiction to decide the question of its ownership Reliance was placed in the first instance on section 16 of the C. P. C. but that was abandoned because "property" as defined in section 16 itself means property which is in Pakistan. No doubt it may be argued that if even 'With respect to property in Pakistan a Court has jurisdiction only in case it is situate within its territorial jurisdiction, it should have no jurisdiction where the property is not situate in Pakistan at all. The argument which may at first sight semi plausible has really no force. Territorial jurisdiction in so far as the Courts in Pakistan are concerned is really a distribution of business and is not truly a question of jurisdiction as 'will appear from section 21 of the Code of Civil Procedure. As held in Ralagopala Bandarathar and others v. 2irupathia Pillai and another (A I R 1926 Mad. 421) J the defect of territorial jurisdiction is really an irregularity and is not a defect of jurisdiction. In any case I can amply show the existence of jurisdiction in this case qua the provisions of the C. P. C. Under section 20 a suit can be brought in a Court if the defendant resides or the cause of action wholly or in part arises within the jurisdiction of the. Court. In the present case the defendant is residing within the jurisdiction of the Court and at the same time the cause of action, which is the denial by the defendant of the plaintiffs' rights also arose within the jurisdiction of the Court. The suit has therefore been filed within juris diction unless there be some exception to section 20 which is applicable. The only exception which could be relied upon was that mentioned in section 16 relating to immovable property arid that admittedly has no application. Section 20, therefore, clearly covers the case. It is only if some inexorable rule which overrides section 20 be established that the Court will have no jurisdiction to entertain this suit. Reliance was placed upon rule 20 of the Dicey's Conflict of Laws which runs thus :‑
Subject to the Exceptions hereinafter mentioned, the Court has no jurisdiction to entertain an action for‑
(1) the determination of the title to, or the right to the possession of, any immovable situate out of England. (foreign land) ; or
(2) the recovery of damages for trespass to such immov able.
The exceptions to this rule I will presently state in detail.
It should be remembered that private International Law is not a law that may be binding on the Courts. On account of the existence of separate states Courts have to deal with cases which contain some foreign element and some rules be adopted with respect to such cases in the absence of any pro vision in the Municipal Law of a country. But it is the adoption of such rules by the Courts of a country that gives them the force of law and not the opinion of the commentator. In fact neither commentators nor various states are agreed as to the correct rules that are applicable. What we find in Dicey are the rules adopted by the English Courts.
Let us now consider whether rule 20 is one which along with its Exceptions we should accept in its entirety. Historically considered the rule is based not on any principle but on the peculiarities of the English Common Law as will appear from the following passage in Dicey's :‑
"This rule is now well established, but its precise scope is open to some doubt. Its origin has been traced to the ancient common law practice whereby juries were chosen from persons acquainted with the facts of a case, who therefore decided questions of fact from their own know ledge and not from the evidence of witnesses. In order that the right jury might be empanelled it was necessary that the venue should be laid with exactness. The consequence was that English Courts had no jurisdiction to entertain actions where the facts had occurred abroad. The inconvenience of this rule led to its evasion by the fiction of videlicet, i.e., by the untraversable allegation that a foreign place was situate in, e.g., the parish of St. Macylebone. Unfortunately this relaxation only applied to transitory actions, that is actions where the facts might have occurred anywhere (e.g., actions for breach of contract); it did not apply to local actions, that is actions where the facts could only have occurred in a particular place (e.g., actions relating to foreign land).
This technical and somewhat arbitrary distinction between transitory and local actions did not appeal to Lord Mansfield, who on two occasions entertained actions for trespass to land in Nova Scotia and Labrador, on the ground that there were no local Courts and therefore the plaintiff would otherwise have been without a remedy. Unfortunately Lord Mansfield's liberal view was overruled in Doulson v. Matthews where Buller, J. said. It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory or local actions ; it is sufficient for the Courts that the law has settled the distinction and that an action quare clausum fregit is local".
Dicey tries to justify the rule on the principle of effectiveness that is the principle that a Court should pass only such a decree as can be effective.
He says :‑
"The principle of effectiveness amply justifies, though it does not historically account for, the refusal of English judges to adjudicate upon the title to, or the right to possession of, foreign land. But doubt may legitimately be entertained whether the principle of effectiveness justifies the refusal of English judges to entertain actions for such injuries to foreign land as admit of compensation in damages."
The rule has been subjected in English Law to certain exceptions which, as Dicey points out are not well defined. They are :‑
"(1) A suit can be brought in English Courts with respect to immovable property situate in foreign territory if ;
(a) there is a contract between the parties ; or
(b) there is an equity between such parties ; with refer ence to such immovable property."
(2) Where the Court has jurisdiction to administer an estate or a trust and the property includes movables or immovables situated in England and immovables situated abroad, the Court has jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.'
(3) The Court has jurisdiction to entertain an action in rem against a ship to enforce a maritime lien on the ship for damage done to an immovable situate out of England, and perhaps has jurisdiction to entertain any Admiralty action in respect of foreign land, whether in rem or in personam."
No principle is stated as the basis of these exceptions. This is recognised by Dicey when he says :‑
"The obligations which the Court will thus enforce are not easily brought under one definite head. 'They all depend', said Parker, J. 'upon the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of the Court of Equity in this country, would e unconscionable and do not depend for their existence on the law of the locus of the immovable property."
It appears to me that a refusal to exercise jurisdiction in a case which under the provisions of the C. P. C. Courts have jurisdiction to entertain, can be justified on the ground that no Court can pass a decree, which cannot be enforced. This is the ground on which Dicey justified the rule and to this extent I accept it. As will appear from Dicey the law is not in a very satisfactory state in England and there is no reason why we should transport it in the same unsatisfactory state into Pakistan. The principle of effectiveness is sound and should be followed but whenever it is possible for the Courts to pass a decree which would help one party or the other to secure G his rights, there is no reason why jurisdiction should be declined. The general principles on which the rules in Dicey's Conflict of Laws are based are only four as stated at page LXV. The fourth principle is that the Courts refuse jurisdiction in a case where they cannot pass an effective decree. None of the other three principles would cover the case under consideration. I would therefore, for deciding whether the Court has jurisdiction, consider whether the Court can pass an effective decree. The circumstances in the present case are peculiar. What the plaintiffs want to establish is their right to apply for allotment. They are not asking for possession of the property or for any relief directly connected with the property in India. The decision between the parties as to their rights in the land in India will be made by the parties the basis of their claim for allotment and it can hardly be argued that this is a case where the decree will be futile. In so far as allotment is to depend on the rights of parties which are being adjudicated the decree would directly affect the allotment. It is clear too that a claim of the kind that is the basis of the present suit ought to be decided only by the Courts in Pakistan. Refugees from India cannot go and file suits in India with respect to their right to allotment. Learned counsel for respondent cited Ramlal Hargopal v. Kisanchandra and others (A I R 1924 P C 95), wherein it was held that the Nagpur Court had no jurisdiction to order the filing of an award relating to property in Berar. The decision was based on the wording of para. 20 of Schedule 11 to the C. P. C. and not on any principle of International Law. An observation towards the end of the judgment goes iii fact against the contention of the respondent. It reads :‑
"Their Lordships cannot see that any decree could be framed upon this award which would affect any person or property within the jurisdiction".
If the test of jurisdiction be that property within jurisdiction should be affected it is clear that the present suit satisfies the test. I would repel the objection as to jurisdiction. This appeal is accepted and the claim decreed in .full, but the parties are left to bear their own costs throughout.
A. H. Appeal accepted.
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