1. MUHAMMAD APZAL ZULLAH, J.-This appeal through special leave calls in question judgment and orders of the Lahore High Court ; whereby in a civil matter relating to landed property a Regular Second Appeal filed from respondents' (plaintiffs) side, was allowed ; and the prayer for certificate to file a Letters Patent Appeal as also an application for review the said judgment, were refused, on 8-3-1966 and 22-3-1968, respectively.
2. It was claimed by the plaintiffs that Hidayat and Inayat were co-owners in possession with Naurang, predecessor-in-interest of the appellants (defendants) to the extent of one-half share of 511 kanals 11 marlas (land in dispute). They asserted that notwithstanding the co-ownership and posses--sion, Naurang got a mutation sanctioned in 1902 whereby the names of Hidayat and Inayat were omitted as owners in possession and the resultant Mutation (No. 223 on 2-4-1902) indicated as if Naurang alone was owner in possession of the entire land. On immediate protest from Hidayat and Inayat, it was further asserted, Naurang, who was their close relation, executed agreement/acknowledgment (w.U jV) Exh. P. 1 on 4-5-1902, whereby Hidayat and Inayat were admitted as co-owners in possession. They were to continue as such and they were to receive the share of the produce from the tenants ; but no legal action was to be taken by them with regard to a wrong entry in the said mutation, because as stated by Naurang in the Ikrarnama this would humiliate him. The parties acted on this arrangement till 1953 when by a Mutation No. 387 dated 13- 5-1953, the heirs of Naurang (defendants Nos. 1 to 5) and his other successors-in-interest effected an exchange of some of the suit land with defendant No. 8. This was considered as indirect contravention of the contents of Exh. P.
1. Accordingly, the plaintiffs, namely, Hidayat and Inayat's sons (Rajah, Allahyar and Kabir) instituted the suit on 20-5-1954 ; seeking declaration that they were owners in possession of the disputed share in land and further that the mutations were of no legal effect. In their written statements while expressing ignorance about the ownership of one-half share of the suit land, the appellants/ defendants denied the plaintiffs (respondents') assertion regarding their possession as also the agreement Exh. P.
1. They further asserted that Exh. P. 1 was never acted upon. Plea of limitation was also raised.
3. A learned Senior Civil Judge by his judgment dated 12-5-1955 decreed the suit on finding that the plaintiffs were co-owners in the suit land to the extent of one-half share prior to the mutation of 1902 ; that they being absentee landlords were receiving the produce of the land as owners ; that on their protest regarding mutation of 1902 which they had not accepted as based on reality, the agreement/acknowledgment, Exh. P. 1 was executed by Naurang and that the said having been acted upon, they remained in possession. Thus the suit was within limitation and the plaintiffs were entitled to the declaration sought for.
4. On first appeal by the defendants, it was held by a learned Additional District Judge that the agreement/acknowledgment, Exh. P. 1 was genuine ; that the witnesses, who had proved the same, were reliable persons ; and that though Naurang did make an admission in the document, Exh. P. 1, it would not create any title in favour of Inayat and Hidayat. His reasoning was that no independent evidence having been produced regarding the initial co-ownership of Inayat and Hidayat, the presumption raised in favour of Naurang's exclusive ownership by continued entries to that effect in the Revenue records since 1902, had not been rebutted by oral evidence produced by the plaintiffs regarding their possession. Further, on similar reasoning, ultimately the learned first appellate Court also treated the suit as beyond limitation and accordingly dismissed the same.
5. On second appeal by the plaintiffs (respondents herein), a learned Single Judge of the High Court took note of the oral evidence in some detail, analysed both the judgments and after comparison of the reasoning thereon, found that the first appellate judgment was not only self-contradictory in parts, but also it failed to notice overwhelming independent evidence of reliable persons produced from the plaintiffs' side ; which included two witnesses, who were declared by the learned appellate Judge as reliable. In these circumstances, the first appellate judgment was set aside and the trial Court judgment and decree were restored by the High Court by its judgment dated 8-3-1966. .
6. The appellants filed an application under clause 10 of the Letters Patent (Lahore) for certificate to file an L. P. A. On 5-4-1966. A memorandum containing the grounds of Letters Patent Appeal was also submitted with this application. A subsequent application was moved by the appellants on 10- 3-1967 requesting that the earlier application submitted for grant of fitness certificate be treated as review petition. Both the original application for grant of certificate to file an L. P. A. As also the request to treat it as a review application, were dismissed by the learned Single Judge (who had decided the regular second appeal on 8-3-1966 by a short order which reads as follows; "This R. S. A. Was decided by my judgment dated 8th March, 1966. An application was then filed on behalf of some of the respondents on 6th April, 1966 for a grant of a certificate under clause 10 of the Letters Patent. Before that application could be disposed of, an application was filed on 11th March, 1967 praying that the application for the grant of a certificate be treated as a review petition under Order XLVII, rule 1, C. P. C. Today I have heard the counsel for the parties on both these applications.
7. With regard to the first petition for grant of certificate it is not disputed that this was barred by limitation. The period of limitation for filing an application for the grant of a certificate is 20 days.
8. The judgment was delivered on 8-3-1966. An application for copy of judgment was filed on 16th March, 1966 and the copy was delivered on 22-3-1966. When these seven days taken for obtaining the copy are excluded the application is still barred by limitation having been filed more than 20 days after the passing of the judgment. It is, however, contended that when a prayer is made though on 11th March, 1967 that this application should be treated as a petition in review and if such a prayer is granted then the application for a certificate which was filed on 6-4-1966 would become an application for review of the judgment and having been filed within 90 days would be within time. I am afraid, I cannot accept this contention. The application for the grant of a certificate having been filed beyond limitation was liable to be dismissed on that ground. I could not then upon an application, which was filed after about one year, treat that time-barred application for the grant of the certificate as an application for review under Order XLVII, rule 1, C. P.
9. C. It may further be noted that the jurisdiction under clause 10 of the Letters Patent and the jurisdiction under Order XLVII, rule 1, C. P. C. Are two different jurisdictions. Be that as it may, I am clearly of the opinion that the time-barred application, which was filed on 6-4-1966, cannot, upon a prayer made on 11th March, 1967, be treated as a review petition. If this petition for review had been filed on 11-3-1967 it is not disputed that it would be barred by time.
10. For reasons given, both these applications are dismissed."
11. Leave to appeal was then sought by the present appellants (defendants in suit). It was granted by this Court by order dated 13-5-1968 to consider the argument "that limitation for an application under clause 10 of the Letters Patent is 30 days, when it is directed against an order passed by the High Court in its appellate jurisdiction as in the present case, and not twenty days as wrongly found by the learned Single Judge which is the period of limitation for application against the orders of the High Court passed by a learned Single Judge of the High Court in original jurisdiction refers to rule 4 of Chapter 1 (a), Volume V of the High Court Rules and Orders".
12. The appeal was taken ' up for regular hearing on 19-1-1982 when the learned counsel appearing for the respondents/plaintiffs agreed that the application for grant of certificate filed in the High Court was within limitation as the same was filed within thirty days from the date of the judgment in the regular second appeal. He did not object to the remand of the case to the High Court for reconsideration of the application for grant of certificate on merits. The appeal was adjourned fur further consideration of the question whether despite the concession from the respondents' side, the application for grant of certificate could not be considered to be time-barred. The matter came up for hearing again on 23rd of January, 1982 but the learned counsel appearing for the parties could not render any assistance. Mr. Mahmood Ali Qasuri, a learned Senior Advocate, who was present in connection with another case, volunteered to assist the Court on the question whether any period of limitation was prescribed for making an application under clause (10) of the Letters Patent (Lahore) in connection with the grant of certificate to file an L. P. A. And whether in case the application is moved beyond the period of limitation prescribed for filing the appeal itself, the application (for the certificate) would become time-barred. Mr. Qasuri then took time and addressed elaborate arguments on this question on 31st of January, 1982. The relevant provisions which require consideration read as follows :- Clause 10 of the Letters Patent (Lahore) (as it stood before the promulgation of Law Reforms Ordinance XII of 1972).
13. "10. Appeals to High Court from Judges of the High Court.-And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of Government of India Act, or in the exercise of Criminal Jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and notwithstanding any thing herein before provided an appeal shall lie to the said High Court, from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February one thousand, nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal ; but that the right of appeal from the other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."
14. The period of limitation for filing an appeal under clause 10 is provided in rule 4 of Chapter 1-A of Volume V of the Rules and Orders of the High Court of Judicature at Lahore. It reads; "4. No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation. Such memorandum of appeal need not be accompanied by a copy of the decree, order or judgment appealed from, but a memorandum of appeal for which a certificate is required under clause 10, must contain a declaration to the effect that the Judge, who passed the judgment, has certified that the case is a fit one for appeal. The time spent in obtaining the certificate from the Judge (including the date of application and the date on which the Judge passed the order) shall be excluded in computing the period of limitation."
15. The Lahore High Court framed separate rules also for regulating the procedure in appeals filed under clause 10 of the Letters Patent (vide notification No. 72-R/V-H-8, dated the 15th March 1943, published at pages 249-50 of the Punjab Gazette, 19th March, 1943, Part III and at page 131 of the Gazette of India of 17th April, 1944, Part II-A). Clause 2 of these rules is the same as is rule 4 in Chapter 1-A of the High Court Rules and Orders, Volume V, which has already been reproduced.
16. Clauses 1 to 4 of these rules are the same as are contained in Part `C' of Chapter 2-C of the High Court Rules and Orders, Volume V. There is nothing in the aforementioned rules published in 1943 which could be treated as of any assistance in resolving the question in issue. It is therefore not necessary to refer to them any more. The aforegoing reproduction of the relevant law does not show as if any separate period of limitation has been prescribed for filing an application for certificate to file a Letters Patent Appeal. It now needs to be seen whether the Limitation Act provides any guidance.
17. One relevant article pointed out by Mr. Mahmood Ali Qasuri is 151 of the Limitation Act which provides 20 days for filing an appeal from a decree or order of a High Court in exercise of its original jurisdiction, the commencing date is of the decree or the order. Another provision mentioned at the Bar is Article 181 of the Limitation Act which provides that an application for which no period of limitation is provided elsewhere, "in this schedule or by section 48 of the Civil Procedure Code" the period of limita--tion would be three years from the date when the right to apply accrues.
18. Despite research by all the learned counsel, they were unable to point out any provision prescribing the period of limitation for filing an application for certificate to prefer an L. P. A., as distinguished from filing the appeal under clause 10 of the Letters Patent. The learned Advocate- General also deputed an Assistant Advocate-General to assist the Court in this behalf ; who stated that there is no statute or a rule providing separate period of limitation for filing an application for the grant of certificate. He also contended that in this behalf an application for grant of certificate cannot be treated as an application for review under Order XLVII of the Civil Procedure Code. He cited Allah Bux v. Mst. Sardaran (1), Badruddin Abdul Rahim v. Sitaram Vinayak Apte (2) and the Full Bench case in Punjab Co--operative Bank Ltd. v. Official Liquidators, Punjab Cotton Press Co.
19. Ltd. (31 Mr. Mahmood Ali Qasuri cited other cases with the submission that although the questions relevant to the filing of a Letters Patent Appeal and the period of limitation in that behalf have been dealt with, the specific question of period of limitation for grant of certificate has not been considered therein. From all this, he further argued, it becomes clear, that the period of limitation for making an application for the grant of certificate would be the same as is the period of limitation for filing the Letters Patent Appeal. According to him, no shorter period having been prescribed and no longer period being possible, because in that case, the appeal itself would become time-barred, the most reasonable construction of clause 10 read with rule 4 quoted above, would be that the period of limitation for filing an application for grant of certificate, is the same as the period provided for fling the appeal. Learned counsel at the Bar including Mr. Qasuri stated that this is the practice being followed by the Lahore High Court for the last several decades.
20. The cases cited by Mr. Mahmood Ali Qasuri are : Faiz Ali v. Chief Administrator of Auqaf (4), Mst.
21. Nihal Khatoon v. Allah Wasai (5), Karachi Municipal Corpn. v. Karimi and Co. (6), Mst. Sarwar Sultana v. Muhammad Nawaz (7).
22. We have also seen a decision in Maung Hman and others v. Ma Shin (8), which has been referred in one of the aforenoted cases. In that case an application for seeking a certificate so as to file an appeal under clause 13 of the Letters Patent concerned, was dismissed, it was on one of the grounds that it was delayed. In that connection, the learned Judge dismissed the applica--tion and observed that although "no period of limitation was prescribed" by the provisions invoked in the application, the delay of four months was such that it could be considered against the applicant.
23. In the case of Mst. Nehal Khatoon decided by this -Court (already noted) a learned Single Judge of the High court had decided a Regular Second Appeal on 10-7-1964. The application for grant of certificate to appeal under clause 10 of the Letters Patent (Lahore) was moved more than two months after the said decision. It was dismissed on 22nd of February, 1965. The unsuccessful party then sought leave to appeal before the Supreme Court from the original judgment deciding the Regular Second Appeal and tried to count the period of limitation from the date of the dismissal of the application for grant of certificate. The leave was refused on the ground that the leave petition was time-barred. Although other aspects of delay were considered, there is nothing in the order refusing leave to appeal to show that the period of limitation for filing of an application for grant of certificate was more than thirty days. In this order of refusal to grant leave, the case of Paresh Chandra Biswas and others v. Tapen Kanti Choudhury (9) was noticed with the observation that the time spent in pursuing an applica--tion for grant of certificate to appeal (under clause 10) would "undoubtedly constitute sufficient cause for extension of limitation". At page 603 of the
(1) AIR 1935 Lab. 330 (2) AIR 1928 Born. 371
(3) AIR 1941 Lab. 257 ' (4) PLD 1974 SC 17
(5) PLD 1966 SC 261 (6) PLD 1967 Kar. 537
(7) 1982 SCMR 460(8) AIR 1924 Rang. 45
(9) PLD 1963 SC 598 report in Paresh Chandra Biswa s's case, it was observed that "When a application is made to the High Court for grant of a certificate for leave to this Court there has necessarily to be an extension of rim.: because the proper course for every party is to approach the High Court in the firs instance for a certificate, but even in that case only one month more I granted from the date of the order of the High Court refusing to grant certificate and for this extension of time there is a specific provision. How could any counsel assume, in the absence of any specific provision that time could be calculated from the date of the refusal of the Single Judge to grant ; certificate ?" These observations might be relevant for considering the question of condonation of delay, but are of no assistance for resolving the controversy in the present case.
24. Another Full Bench case cited at the Bar (Shakoor) Abdul Ganny v Mrs. Russell (1) is no doubt useful in so far as the question of period o limitation provided by a High Court in its Rules and Orders which is different and lesser than the period prescribed in the Limitation Act and the resolution of the controversy resulting from this difference is concerned but it doe: not throw any light on the present controversy. The Division Bench case of Badruddin v. Abdul Rahim (2) from Bombay already noted contains a detailed discussion on other aspects of Letters Patent Appeals, but is of no assistance on the question of period of limitation for filing an application for certificate to file an L. P. A. It was, however, observed therein that an application to the Single Judge, who has disposed of a Second Appeal, for a declaration that the case is fit one for appeal to a Division Bench can be made straight away orally by the Advocate, who thinks that his client should appeal and further that no written application is necessary in such a case. It was also observed that the advocates should be encouraged to make such an ors: application at that time, instead of later, when a written application will have to be made for a special sitting to hear the application by the Judge.
25. The Full Bench case of Ma Than v. Mg. Ba Gyaw (3) was relied upon in the behalf. We were told that this practice of making an oral request already prevails in the Lahore High Court, although there is no specific rule governing the same.
26. The case law cited at the Bar indicates that the Courts have assumed that if an oral request for grant of certificate is not made at the time o: the decision of the matter by a Single Judge, then the written application if to be moved with in the period provided for filing the Letters Patent Appeal before the -Division Bench. It is not against specific provision of law rather the assumption flows from the fact that in case a longer period of limitation is allowed, in the process the appeal itself might become time-barred. This explains the practice which according to the learned counsel, prevails in the Lahore High Court that at the time of the filing of the application fog certificate, memorandum of appeal is also filed along with it. The practice u in accord with the aforegoing legal assumption.
27. After hearing the matter at length and carefully considering the submissions made by all the learned counsel, we agree with the proposition that the period of thirty days provided for filing of Letters Patent Appeal according to the language used in clause 10 as also rule 4, would also be the period for filing an application for grant of certificate. That being so, i1 could not be treated as an application for which no period of limitation i: provided by the relevant law. The residuary article in the Limitation Acs
(1) AIR 1930 Rang. 228 (2) AIR 1928 Bom. 371
(3) AIR 1926 Rang. 1 in terms does not apply to this case. Admittedly, the learned Single Judge in the High Court had not exercised original civil jurisdiction. He had decided a Second Appeal and the period of limitation for seeking a certificate (as distinguished from the situation arising out of an exercise of original jurisdiction) in the present case, which is of exercise of appellate jurisdiction, would be thirty days.
28. The contrary view of the learned Single Judge in the High Court that it was twenty days, with respect, is not correct. The order refusing certificate on ground of limitation accordingly is set aside.
29. This, however, would not end the matter.
30. Having decided that the application for grant of certificate was not time-barred one 'course open for this Court is as suggested from the respondents' side, to remand the case to the High Court for consideration of the application for grant of certificate, on merits. It is, however, dated by all the learned counsel that one of the main conditions for consideration of such an application cannot at all be now satisfied ; because the learned Judge, who could grant such a certificate is no more available as a Judge of the High Court. Leaving aside the question as to whether in circumstances those of this case, it would at all be essential that the application should be heard by the same Judge, we considered it just and proper not to remand the case to the High Court as it would entail further long delays which can be avoided. The litigation in this case started in 1954 and it would be in the interest of complete justice that the merits of the main case be examined by this Court.
31. There was no insurmountable bar in pursuing this course g of action nor any objection was raised from the respondents' side in this behalf ; we, accordingly, decided to extend the leave granting order to the questions of merits also, in so far as the challenge to the judgment of the High Court dated E-3-1966 in R. S. A. Decided in favour of the respondents, is concerned. It is in pursuance of this decision that the learned counsel for both the parties were allowed time to prepare the case for hearing on merits. They accordingly addressed arguments on 3-2-1982.
32. Learned counsel for the appellants pointed out that the suit was filed by Hidayat and sons of Inayat, namely : Kabir, Rajab and Allahyar. The claim in the suit was regarding one-half share in the entire suit land as belonging to Hidayat and Inayat. Learned counsel asserted that Hidayat, one of the original co-owners died on 6-6-1960 and Rajab, one of the successors-in-interest of Inayat, the other alleged co-owner, died in February, 1966, and that till the decision of the Regular Second Appeal in the High Court on 8-3-1966, legal representatives of the said respondents had not been brought on record. Learned counsel also argued that the alleged agreement/acknowledgment, Exh. P. 1 had not been properly stamped and that this aspect having been noticed by the learned trial Court, the document was not impounded, notwithstanding the fact that the deficiency in the stamp duty was not supplied by the plaintiffs ; that the document, Exh. P. 1 which according to the learned counsel contained in reality a conveyance of immovable property was not registered ; and that the exchange mutation of 1953 from which the plaintiffs counted the period of limitation had not been proved on the record by production of the necessary documentary evidence.
33. In addition to the above technical objections to the acceptance of the respondents' regular second appeal by the High Court, learned counsel raised two-fold argument regarding the merits of the case : firstly, that the first appellate Court having set aside the decree of the trial Court on findings of fact, the High Court could not have set aside those findings in second appeal; and secondly, that the plaintiffs kept the agreement/acknowledgment, Exh. P. 1 with them and they failed to get the Revenue entries altered in accordance with the contents of the said documents. They could not, therefore, be permitted to take advantage of inaction on their own part. Learned counsel also contended that the findings of the learned trial Court and of the High Court on the question of possession are not correct.
34. The technical objections raised from the appellants' side were not raised before the High Court during the hearing of the arguments on the respondents' second appeal. Apart from this aspect, the further consideration of these arguments would require factual enquiry which it is neither necessary nor proper to embark upon now in this Court or through remand. This anneal accordingly cannot succeed on these technical grounds.
35. It is true that ordinarily a judgment of variance when impugned before the High Court in second appeal under section 100 of the Code of Civil Procedure would stand on somewhat different footing with regard to the findings of fact than a judgment of affirmation wherein the High Court has to deal with the concurrent findings of fact. Despite this difference, the question as to when the High Court would be competent to interfere in second appeal in a case of former type was examined by this Court in Madan Gopal and four others v. Maran Bepari and 3 others PLC 1969 SC t17It is not necessary here to reiterate and summarize the conditions laid down therein. We invited the learned counsel to show whether the High Court judgment in second appeal does not satisfy those conditions; but he failed to do so. We, however, on careful examination of the reasoning in the three judgments have come to conclusion that acceptance of the reasoning of the trial Court by the High Court in second appeal and accordingly reversing the first appellate judgment does not contravene the conditions laid down, in the case of Madan Gopal. Thus the said judgment does not suffer from any legal infirmity. The argument of the learned counsel for the appellants regarding so-called inaction on the part of the plaintiffs with regard to the entries in the Revenue record, which, as argued, could be corrected on basis of the agreement/acknowledgment, Exh. P. 1, prima facie, it appears, has force. But, on deeper scrutiny, it has been found to be of no avail to the appellants.
36. On the sanction of the first mutation in 1902, whereby the names of Hidayat and Inayat were omitted from the ownership column was promptly objected from the plaintiffs' side ; who succeeded in this protest in obtaining a very valuable acknowledgement from Naurang in whose favour the mutation had been sanctioned, within almost a month of the sanction of the mutation.
37. In fact, on the discovery regarding sanction of mutation which affected their rights injuriously, Hidayat and Inayat had two courses open to them : one, to call upon Naurang to disclaim the entries in the mutation which injuriously affected the rights of Hidayat and lnayat ; and two, on his failure to do so filed a civil suit to challenge the entries. In the present case, on the protest, and consequential approach to Naurang, he, the beneficiary under the mutation, accepted the co- owners' demand. Not only this, he acknowledged them as owners and accepted their right to continue receiving the produce. That being so, in the circumstances of the case, Hidayat and Inayat were not in law bound to seek any further declaration from the Court, as their claim had not been denied by the person concerned. And with regard to their subsequent conduct, it might be observed that so long as the document, Exh. P. 1 was acted upon by Naurang and his successors- in-interest, they would not have suffered any real harm by the continuance of adverse entry in the Revenue record. They were in constructive but effective possession as they used to receive the produce from the tenants. The period of limitation in fact did not start from the alleged loss of possession but from the date of the exchange mutation which was the first act of denial of their rights as they always existed and were so acknowledged in the document, Exh. P.
1. This led to the filing of the suit which having succeeded, the Revenue authorities would on this success by law would be required to correct the entries. Thus the argument of the learned counsel in this behalf has also no force.
38. None of the arguments advanced from the appellants' aide in so far as the acceptance of the respondents' second appeal by the High Court having succeeded, no useful purpose would be served by remanding the case for consideration of the application for grant of certificate to file an L. P. A. This appeal accordingly is dismissed. There shall, however, be no order as to costs.