LexGURDIT SINGH AND ORS. ETC. versus MUNSHA SINGH AND ORS. ETC.
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A B c D E F G H 250 OORDIT SINGH AND ORS. ETC. v. MUNSHA SINGH AND ORS. ETC. November 29, 1976 [A. N. RAY, CJ., M. H. BEG AND IASWANT SINGH, JJ.] Limitatio11 Act, 1908-S. 14-Applicability of-Punjab Limitation (Cus .. - toms) Act, 1920 Art. 2 of Schedule-Accrual of the rig/11 to use-Meaning of. The appellants filed three suits (the earliest of the three suits was filed on· December 18, 1945) for possessiou of lan:ds claiming that K, the last owner· of the lands died on Angust 15, 1945. Those suits were dismissed on August 3, 1951, as premature on. the ground that the fact of the death of K had not been established. The appellants again instituted three suits in October 1952, December 1952" and May I 953 fQr the same relief as in the previous suits alleging that the right to sue had accrued after August 16, 1952, that is, after a period of seven years, under s. 1 O&· of Evidence Act; that K died three years before the date of the filing of the suits; and that ~hey were within time under art. 2(b) of the· Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which pro- vides that the period of limitation for a suit for possession of ancestral im- movable property which has been alienated, is three years, if a declatory decree· has been obtained, and that period commences from the date on which the right to sue accrues. On appeal, a single Judge of the High Court decreed the suits holding that K having been. treated as alive by the High Court when it passed the previous decree in 1951, the conclusion of the lower courts that he had been dead for seven years before the institution of the suits could not be sustained and als& excluded the time spent on the previous litigation from 1945 to 1951 under s. 14(1) of the Limitation Act. On Letters Patent appeal, the Division lBench held : ( 1) that the single Judge was in error in excluding the time spent on the previous litigation by applying s. 14(l) of the Limitation Act; (ii) that the words "or other cause of a like nature" occurring in s. 14(1) had to be read ejusdem ge11eris with the preceding words "relating to the defects of jur'sdiction" and that: it was not .possible to give the benefit of that provision to the plaintiffs. Dismissing the appeal to this Court (per A.N. Ray, C.J., and Jaswam· Singh, Jl HELD: (1) Under art. 2(b) of the Schedule to the Punjab Limitation (Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring their suits within three years of the accrual of the right to sue (which according to well settled judicial opin'on means the accrual of the right to seek relief), namely within three years of the death of K. They had to prove affirmatively that the death of K took place within three years of the institution of the suits. Granting that K has to be presumed to be dead, it cannot be overlooked that under s. 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidenee. and the onus of proving ~hat the death took place at any particular time within seven years lies upon the person who claims the right for the establishment of which the proof of that fact is essen- tial. The plaintiffs had not only, therefore, to prove that K had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within >even years when K's death occurred. Th~ they have failed to prove. In the absence of such oroof, it cannot be held that the present suits had ns>t been r brought within th.ree years of the accrual of the right to sue. [263 D-G] ., . , ..... • GURDIT SINGH V. MUNSHA SINGH 251 Nepean v. Doe D. Knight (1837) 2 M & W 894; 7 L J Ex 335, Jayawant A. Jivarao Deshpande v. Ramachandra Narayan Joshi (A.LR. 1916 Born. 300), Lalchand Marwari v. Ramrup Gir (LIII I.A.24; A.LR. 1926 P.C. 9), Jiwan Singh v. Kuar Reoti Singh & Anr. (A.LR. 1930 All. 427), Kottappalli Venka- tesirar/11 v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380), P1miab and Ors. v. Natha & Ors. (A.LR. 1931 Lah. 582) and Ram Kali & Ors. v. Narain Singh (A.LR. 1934 Oudh 298 F.B.) referred to . (2) If K had died beyond three years, from the date of the suits, the suits would be barred by limitation because the appellants cannot claim the benefit B·: of s. 14 of the Limitation Act 1908. The three important requirements of the section are: (1) that the plaintiff must have
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