S.S.DULAT, J. - (1.) THE following pedigree table will help in understanding the facts of this case : RAJ KAUR (Widow of Bir Singh) ________________|___________________ | | Prem Kaur (Plaintiff) Mahan Kaur | ____________|_____________ Bakhshi Singh | | Lal Singh Pratap Singh (plaintiff) (plaintiff) Raj Kaur was in possession of 851 kanals 18 mar -las of land in village Dhaipai which was then in the Faridkot State. Of this area, 481 kanals 7 marlas was occupancy tenancy, the landlord being the Raja Sahib of Faridkot, while the remaining land was held by Raj Kaur as adna malik, again the ala malik being the Raja. Sometime about the year 1953 Bk. (corresponding to 1893) Raj Kaur adopted her daughter's son Bakhshi Singh, and he took possession of the land. Later he transferred some of the land to his cousin Partap Singh son of the second daughter of Raj Kaur. In the meantime, however, and during the lifetime of Raj Kaur, the Raja of Faridkot brought a suit to avoid the adoption and in that suit Raj Kaur and Bakhshi Singh were impleaded as defendants. This suit succeeded and the adoption was declared invalid. Raj Kaur died in Bhadon, 1987 Bk. (corresponding to August, 1930) and about three years after that the Raja of Faridkot brought two suits for possessionone regarding the occupancy tenancy and the other concerning the adna malkiat and in those suits Bakshi Singh and Partap Singh were made defendants. Both the suits were decreed and, in execution, the Raja took possession of the entire land in Assauj, 1995 Bk. (corresponding to October, 1938), and some years later the Raja sold the entire land to one Kehar Singh for Rs. 84,357/8/ -. Gurbindar Singh and others brought a suit to pre -empt this sale in favour of Kehar Singh and succeeded in getting a decree. Before that, however, Mst. Prem Kaur, daughter of Raj Kaur, brought a suit on the 5th Kartik, 2005 Bk. (corresponding to the 23rd October, 1948) for possession of the entire land against Kehar Singh as well as the Raja of Faridkot, claiming that she was the legal heir of Raj Kaur and entitled to the possession of the land and that the defendants were mere trespassers - About a year later, i.e. on the 6th Phagan, 2006 Bk. (corresponding to the 17th February, 1950) Lal Singh brought a similar suit against Kehar Singh ami the Raja of Faridkot, again claiming possession on the ground of title as an heir to his mother Mahan Kaur, who had in the meantime died in Har, 1995 Bk. (corresponding to July, 1938). In this suit Partap Singh was first made a defendant but later joined as a plaintiff. These two suits were consolidated and tried together. The Raja of Faridkot was struck off as a defendant as he had no longer any interest in the property while Gurbinder Singh and others, who had succeeded in the pre -emption suit, were joined as contesting defendants, Kehar Singh had 'filed a written statement and that was adopted by Gurbinder Singh and others.
(2.) THESE two suits one by Prem Kaur and the other by Lal Singh and Partap Singhwere resisted on a number of grounds. It was denied that Lal Singh and Partap Singh were the sons of Raj Kaur's daughter and also denied that Prem Kaur was Raj Kaur's daughter. It was pleaded that, in any case, neither Prem Kaur nor the sons of Mahan Kaur were legal heirs to the properly. It was further pleaded that both the suits were barred by time, having been brought more than twelve years after Raj Kaur's death. It was said that the plaintiffs in both the suits were estopped from suing and that the decision in the previous litigation started by the Raja of Faridkot operated as res judicata, and finally that Kehar Singh was a bona fide purchaser for valuable consideration and was protected as such. On these pleadings the trial Court framed the following six issues: (1) Whether Smt. Prem Kaur plaintiff is the daughter of Smt. Raj Kaur deceased and entitled to succeed to the property left by the latter? (2) Whether Lal Singh and Partap Singh plaintiffs are the sons of the daughter of Smt, Raj Kaur deceased, and are entitled to succeed to the property left by the latter? (3) Whether the suits of Smt. Prem Kaur, and Lal Singh and Partap Sing plaintiffs are within time? (4) Whether the plaintiffs Smt. Prem Kaur, Lal Singh and Partap Singh or either of them are estopped from suing? (5) Whether Kehar Singh is a bona fide purchaser, and if so, what is its effect? (6) Whether the decision in the suit filed by His Highness of Faidikot against Bakhshi Singh and others for possession of the land in dispute operates as res judicata against Partap Singh defendant? On the evidence the Court found that -Prem Kaur was the daughter of Raj Kaur, and Lal Singh and Partap Singh were the sons of Raj Kaur's second daughter, Mahan Kaur that Prem Kaur as well as Lal Singh and Partap Singh were entitled to succeed to Raj Knur's property in preference to the Raja of Faridkot that the plaintiffs were not estopped from and that the decisions in the previous suits brought by the Raja did not operate as res judicata. On the fifth issue the Court held that Kehar Singh was not protected by the rule contained in Section 41 of the Transfer of Property Act. On the third issue regarding limitation, the Court found that the suit of Prem Kaur was barred by limitation, while the suit of Lal Singh and Partap Singh was not so barred, and in the result the trial Court dimissed the suit of Prem Kaur but decreed the suit by Lal Singh and Partap Singh and granted them a decree for possession of one -half of the suit land. The parties were left to their own costs. Against this decree, Gurbinder Singh and others appealed and so did Prem Kaur and cross -objections were filed by Lal Singh ana Partap Singh. The learned District Judge considered the matter and affirmed the conclusions of the trial Court on all the issues and thus dismissed both the appeals as well as the cross -objections, but left the parties to their own costs throughout A second appeal to this Court has been fifed by Gurbinder Singh and others, the defendants in the suits, while another appeal has been filed by Prem Kaur against the dismissal of her suit, and there are cross -objections by Lal Singh and Partap Singh. All these can be conveniently decided together. The first matter raised by Mr. Atma Ram an behalf of Gurbinder Singh and others concerns the findings of the Court below that Prem Kaur is Raj Kaur's daughter and Lal Singh and Partap Singh the sons of her other daughter. These are admittedly findings of fact and ordinarily not open to question in second appeal, but Mr. Atma Ram claims that he is entitled to have these findings re -examined, in view of a provision contained in the Patiala and East Punjab States Union Judicature Ordinance (No. X of 2005 Bk.). This question, which is of some importance, had arisen before me in two other second appeals Second Appeal No. 193(P) of 1952 (Punj) and Second Appeal No. 288(P) of 1952 (Punj) and I had thought it proper to refer it to a larger Bench, and in another case Second Appeal No. 4(P) of 1953 (Punj) Tek Chand J. had referred the same question to a larger Bench. All these three cases have been referred to us, and we have apart from Mr. Atma Ram heard Mr. Puran Chand in one case and Mr. D.S. Nehra in the other two cases. All these cases concern territory which, before the 1st November, 1956, was included in the Patiala and East Punjab States Union shortly called 'PEPSU' which was a part 'B' State. The Code of Civil Procedure was for the first time made applicable to Part 'B' States on the 1st April, 1951, by the Code of Civil Procedure (Amendment) Act (No. II of 1951). Prior to that PEPSU had its own law governing civil procedure and the relevant provision was admittedly contained in the Ordinance relied upon by Mr. Atma Ram as well as other learned counsel. This Ordinance (No. X of 2005 BK) purported to consolidate and amend the law relating to the Courts in PEPSU and it came into force there in August, 1948, but even before then there was another procedural law in force with which we are not 'low directly concerned. The Ordinance in question provided for certain matters relating to appeals to the High Court of PEPSU and Section 49 said: '(1) Except as otherwise provided by any law for the time being in force in the Union, an appeal shall lie to the High Court from: (a) a judgment, decree or order of a District Judge or Additional District Judge passed in exercise of his original civil jurisdiction (b) an appellate judgment, decree or order of a District Judge or Additional District Judge, if (i) such judgment, decree or order reverses or alters the judgment, decree or order of the Court from whose judgment, decree or order the appeal was preferred to the District Judge or Additional District Judge or (ii) the amount or value of the subject matter in appeal to the High Court is more than Rs. 1,000/ - in a suit of the nature of small causes or more than Rs. 500/ - in other suits (c) a judgment, decree or order of a subordinate judge where an appeal does not lie to the District Judge owing to the value of the subject matter being beyond the appellate jurisdiction of the District Judge, or where there is a good ground to doubt as to which District Judge an appeal lies: (2) An appeal provided for hereunder shall lie on a question of fact or law or both. Explanation: A question as to the existence or validity of a custom or the applicability of a custom to some or all the parties to the appeal shall be deemed to be a question of law.' It will be observed that this Section indicated the category of cases in which an appeal was competent to the High Court and Sub -section(2) then laid down the grounds on which an appeal could lie. It is obvious that, if this particular provision is still in force, an appeal to the High Court from an appellate judgment and decree of a District Judge would lie on a question of fact. From the 1st April, 1951, however, the Code of Civil Procedure was made applicable to PEPSU and Section 20 of Act II of 1951 while extending the Code to PEPSU and other Part 'B' States provided that: ''If, immediately before the date on which the said Code comes into force in any Part B State, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed: Provided that the repeal shall not affect: (a) x x x (b) any fight, privilege, obligation or liabilityacquired, accrued or incurred under any law sorepealed.' Mr. Atma Ram admits, although Mr. Nehra does not, that with the enactment of Act II of 1951 and with effect from the 1st April, 1951, the provision contained in Sub -section (2) of Sec. 49 of Ordinance X, 2005 Bk. stood repealed, because that was a provision corresponding to a provision contained in Section 100 of the Code of Civil Procedure. I shall presently consider Mr. Nchra's contention in this connection, but it is convenient first to deal with Mr. Atma Ram's argument. Mr. Atma Ram's case is that, in spite of the repeal of Sub -section (2) of Section 49 of the PEPSU Ordinance, the right of appeal, as far as his two cases, i.e., the suits brought by Prem Kaur and Lal Singh, are concerned, cannot be affected because the right of appeal had already accrued before the 1st April, 1951, and it was expressly saved by Section 20 of Act II of 1951. The argument, in short, is that a right of appear accrues on the date a suit is lodged and that right remains vested in the parties till the litigation is finally settled. Mr. Atma Ram urges on the authority of several previous decisions that a right of appeal is a substantive right and not a mere matter of procedure and the right cannot be taken away and is ordinarily not deemed to he taken away by any enactment affecting such right unless that enactment, either expressly or by necessary implication, so demands. In the present ease, or course. Act II of 1951 expressly saves every right which may have already accrued, and if Mr. Atma Ram is right that the right of appeal accrues to a party the moment a suit is lodged, it would follow that that right was not affected, by the extension of the Code of Civil Procedure to PEI'SU, in the two suits by Prem Knur and Lal Singh which had been filed in the Court of first instance long before the 1st April, 1951. Left to myself I would have been inclined to think that an appeal is a matter of mere procedure, but there are so many authoritative decisions to the contrary starting with the Privy Council decision in The Colonial Sugar Refining Co. Ltd. v. Irving, 1905 A.C. 369 that it is, I feel, ton late now to advocate that view. Lord Macnaghten observed in that case 'The only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act or was it a mere matter of procedure? It seems to their Lordships that the question does not admit Of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.' - Following this authority a Bench of the Calcutta High Court in Sadar All v. Doliluddin Ostagar : AIR 1928 Cal 640 decided that: 'The date of presentation of the second appeal to the High Court is not the date which determines the applicability of the amended Clause 15, requiring permission of the deciding Judge, for further appeal, but the date of institution' of the suit is, in each case, the determining factor.' Our Supreme' Court has followed the same rule in Messrs. Ganpat Rai Hiralal v. The Aggarwal Chamber of Commerce Ltd. AIR 1952 SC 409, applying the decision in 1905 AC 369. There is then a Full Bench decision of this Court, Gordhan Das -Baldev Das v. Governor General in Council AIR 1952 Punj 103 (FJ3) on the same lines. I am therefore, compelled to conclude that a right of appeal is a substantive right and accrues at the time of the suit. It follows that in the two cases concerning Mr. Atma Ram that right was not affected by the repeal of Sub -section (2) of Section 49 of the Ordinance, and he is consequently entitled to challenge the lower Court's findings of fact.
(3.) MR . Nehra had to travel beyond this proposition, because in his cases we gather, the suits were filed after the 1st April, 1951. He contended, therefore, that the repeal mentioned in Section 20 of Act II of 1951 does not at all refer to the provisions contained in Section 49 of the PEPSU Ordinance, because the repeal was only of laws 'corresponding' to the Code of Civil Procedure, while Section 49 of the Ordinance did not correspond to the Code at all. This argument involves the substitution of the words 'identical with' for the expression 'corresponding to' for which there is of course no warrant at all. The argument is otherwise futile, for there is no doubt that when the Code of Civil Procedure was extended to Part 'B' States the intention was that the provisions of the Code alone would govern those matters which were expressly provided for in the Code. Mr. Nehra pointed out in this connection that Section 49 provided for several matters, apart from the ground? on which a second appeal could be lodged and that it could not have been intended to repeal the entire provisions merely because of the extension of the Code of Civil Procedure to PEPSU. Learned counsel is, in my opinion, right that Act II of 1951 did not repeal every provision contained in the PEPSU Ordinance but only repealed such iaws as corresponded to the provisions of the Civil Procedure Code and in respect of Section 49 of the PEPSU Ordinance everything was not repealed. Sub -section (1) of that section, for instance, provided for matters which had nothing to do with the Code of Civil Procedure. The only provision in Section 40 which corresponds to Sections 100 and 101 of the Code of Civil Procedure was contained in Sub -section (2) and it is that Subsection which, in my opinion, stood repealed by Act II of 1951.;