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PETITIONER: GURDIT SINGH AND ORS. ETC.

       Vs.

RESPONDENT: MUNSHA SINGH AND ORS. ETC.

DATE OF JUDGMENT29/11/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1977 AIR  640            1977 SCR  (2) 250  1977 SCC  (1) 791

ACT:             Limitation Act,  1908--S.  14--Applicability  of--Punjab         Limitation  (Customs) Act, 1920,4rt. 2 of  Schedule--Accrual         of the right to use--Meaning of.

HEADNOTE:             The  appellants filed three suits (the earliest  of  the         three  suits was filed on December 18, 1945) for  possession         of  lands claiming that K, the last owner of the lands  died         on August 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 1953 for the same relief as  in         the  previous suits alleging that the right to sue  had  ac-         crued  after  August 16, 1952, that is, after  a  period  of         seven years, under s. 108 of Evidence Act; that K died three         years  before  the date. of the filing of  the  suits;   and         that  they were within time under art. 2(b) of the. Schedule         annexed  to the Punjab Limitation (Customs) Act, 1920  which         provides  that the period of limitation for a suit for  pos-         session  of  ancestral  immovable 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 also excluded the time spent on the  previ-         ous  litigation  from  1945 to 1951 under s.  14(1)  of  the         Limitation  Act.   On Letters Patent  appeal,  the  Division         Bench  held: (1) that the single Judge was in error  in  ex-         cluding the time spent on the previous litigation by  apply-         ing s. 14(1) 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 generis with the preceding words  "relating         to the defects of jurisdiction" 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..

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       and  Jaswant Singh, J)             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  ac-         cording  to well settled judicial opinion 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 evidence and the onus of proving  that         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  essential.         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 seven years  when  K’s         death  occurred.   This they have failed to prove.   In  the         absence  of such proof, it cannot be held that  the  present         suits had not been brought within three years of the accrual         of the right to sue.  [263 D-G]         251             Nepean  v.  Doe D. Knight (1837) 2 M & W 894; 7 L  J  Ex         335, Jayawant Jivarao Deshpande v. Ramachandra Narayan Joshi         (A.1.R.  1916  Born. 300), Lalchand Marwari v.  Ramrup.  Gir         (LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan Singh v. Kuar Reoti         Singh  & Anr. (A.I.R. 1930 All. 427), Kottappalli  Venkates-         warla  v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P.  380),         Punjab  and Ors. v. Natha & Ors. (A.I.R. 1931 Lah. 582)  and         Ram Kali & Ors. v. Narain Singh (A.I.R. 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 of s.  14  of  the         Limitation  Act 1908.  The three important  requirements  of         the section are: (1) that the plaintiff must have prosecuted         the  earlier  civil proceeding with due diligence;  (2)  the         former proceeding must have been prosecuted in good faith in         a court which from defect of jurisdiction or other cause  of         a like nature was unable to entertain it and (3) the earlier         proceeding  and  the later proceeding must be based  on  the         same cause of action.  [265 D]             (3)  The contention that the appeals had  been  rendered         untenable  as a result of the amendment made to s. 7 of  the         Punjab  Customs Power to Contest) Act 1920 by  the  Amending         Act 12 of 1973 has no force and must be rejected.  Section 4         of the Act provides that the Act shall not affect any  right         to  contest  any alienation or appointment of an  heir  made         before the Act came into force.  This section has been  left         untouched  by  the Amending Act  of 1973.   In  the  instant         case, the alienation was made before the 1920 Act came  into         force and was not affected by that Act.  [261 F-H]             (4)  The words "or other cause of a like nature"  in  s.         14(1) take  their colour from the preceding words "defect of         jurisdiction"  according  to the rule  of  ejusdem  generis.         Therefore,  the defect must be of a character  analogous  to         jurisdiction barring the Court from entertaining the  previ-         ous  suit.  In the instant case, the Court which  tried  and         dismissed  the  previous suits as premature did  not  suffer         from inability or incapacity to entertain the suits on   the         ground of lack of jurisdiction or any other ground analogous         to the defect of jurisdiction.  The exclusion of the  period

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       during  which  the previous suits were pending,  could  not,         therefore, be allowed to the plaintiffs while computing  the         period of limitation.  [265 E; I-1; 266 A]             Bhai lai Kishan Singh v. People Bank of Northern  India,         I.L.R. [1944] Lah 136, Dwarkanath Chakravarti v. Atul  Chan-         dra Chakravarti (I.L.R. 46  Cal. 870) and Palla  Pattabhira-         mayya  & Ors. v. Velga Narayana Rao (A.I.R. 1960  A.P.  625)         referred to.             [Obiter: The causes of action in the previous suits  and         in  the  present suits are also different.   And  hence  the         appellants cannot press s. 14 into service.]         Beg, .J. (Dissenting)            The Division Bench of the High Court was wrong in  ignor-         ing the effect of the finding of the single Judge that a new         cause  of  action had arisen within three years  before  the         filing of the plaintiffs’ suits.  [281 C]             The question of time bar or its removal by resorting  to         s.  14(1) of Limitation Act postulates that a point of  time         from  which limitation could run had been  ascertained.   As         that point could not be the date of the death  of  K,  which         was unknown the suits could not be dismisses on that ground.         [281 D]             (1) The single Judge had sufficiently indicated that the         cause  of  action in the previous litigation  was  different         from  the one in the later inasmuch as the facts  proved  in         the  later case showing that K must be presumed to  be  dead         could not be and were not set up in the earlier suits.   The         cause of action had not accrued in 1945.  The effect of  the         judgment  in  the  former suits was that  these  suits  were         premature,  which  is not the case in the suits  in  appeal.         The  plaints in the later cases set out the case founded  on         new facts not in existence at the time of the earlier  liti-         gation  and expressly stated why the plaintiffs rely on  the         presumption  of  death  of K.  If the  previous  suits  were         dismissed on the ground that they were premature, the  cause         of  action could only, be said to have accrued  after  their         institution.  [268 G; 269 C]         252             The findings of the single Judge showed that the. plain-         tiffs  were entitled to the benefit of the presumption  laid         down  by  s. 108 of the Evidence Act.  He  found  that  till         August  3, 1951 when the judgment of the High Court  in  the         previous  suits  was delivered, the position  was  that  the         death of K had not been established.  This meant that on new         facts asserted and proved, K could be presumed dead when the         subsequent  suits  were instituted in 1952  and  1953.  This         presumption  of death having become available to the  plain-         tiffs  within. three years of the suits and not  before,  no         occasion  for  applying s. 14 of the  Limitation  Act  could         arise.   The  evidence sought to be given  in  the  previous         suits  was  that  K had died on a particular  date  but  the         evidence in the subsequent suit was not that he had died  on         a  particular  date but that he had not been heard  of  from         August  5,  1945 upto the time of filing of  the  subsequent         suits. [269 H; 270 H]             Modi  Khalil Khan v. Mahboob Ali Mian, A.I.R.  1949   PC         78  at  86 referred to.             (2)  (a) If causes of action differ from suit  to  suit,         the accrual of the cause of action can also not be tied down         to  a  particular kind of fact such as the  date  of  actual         death  of the holder of the property.  Once it is held  that         the  causes of action differ for purposes of their  accrual,         their  accrual could not be made to depend on facts  of  one         type  only.  Facts denoting their accrual must  differ  from         case to case.  Proof of date of actual death is  conclusive.

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       But, where the basis of the  right to sue is  presumption of         death,   the. date; of accrual of the right is the  date  on         which that presumption matures.  [271 C]             Indian  Electric  Works Ltd. v. James  Montosh  &  ,Anr.         [1971] (2) SCR 397 followed.             Mst.  Rante  Surno Moyee v. Shooshee Mokhee  Burmonia  &         Ors. 12 Moore’s I.A. 244, State of Madras v.V.P. Agencies  &         Anr. AIR 1960 SC 1309 at 1310 and Mst. Chand Kour v.  Partap         Singh, 15 Ind. App. 156, referred to.             (b) The expression "cause of action" has sometimes  been         employed  to convey the restricted idea of facts or  circum-         stances  which  constitute either the  infringement  or  the         basis  of a right and no more.  In a wider and more  compre-         hensive sense it has been used to denote the whole bundle of         material  facts  which a plaintiff must prove  in  order  to         succeed.   These are all those essential facts  without  the         proof of which the plaintiff must fail in his suit.  [272 G]             (c)  Applying  these  tests, in the  instant  case,  the         causes of action in the earlier and later litigations  would         be  materially different.  No cause of action had arisen  at         all if it is assumed that K had not died at all.  K’s  death         was an essential part of the cause of action.  It had to  be         proved to enable the plaintiffs to put forward their  claims         to  succeed.  But proof of the date of death was not  essen-         tial  or  indispensable  for that purpose.   It  could  only         become  material in deciding whether the right  accrued  had         been extinguished by the law of limitation.  Both the narrow         and wider sense of the term "cause of action’ would  include         all  those facts and circumstances on the strength of  which         the plaintiffs urged that they were entitled to the  benefit         of the obligatory presumption of law contained in s. 108  of         the Evidence Act.  As these were not available to the plain-         tiffs before the expiry of seven years from August 5,  1945,         it  was  not possible to urge that this cause of action  had         arisen more than three years before the filing of the suits.         Therefore,  the date of its  accrual  could  not lie  a  day         earlier  than  seven years after August 5, 1945 when  K  was         last heard of.  [272 G-H; 273 A-B]             (d)  It was for the defendants to establish that  K  was         either  alive or had died more than three years  before  the         suits  were  filed.   The presumption under s.  107  of  the         Evidence  Act  could not come to the aid of  the  defendants         when the plaintiffs had established facts necessary to raise         the presumption under s. 108 of the Evidence Act.  [273 E]          (e) The suits are not barred by limitation.  The plaintiffs         discharged  their  burden as to when the  accrual  of  their         cause of action was within the prescribed period of  limita-         tion.   If the "media" upon which the plaintiffs rest  their         cases         253         are  different in the previous and  subsequent  litigations,         the causes of action are different.  If the alleged date  of         death of K was the date of accrual of the previous cause  of         action,  the  date of accrual of the second could  only   be         something  other than the date of death of K, it  could  not         possibly  be the same. The other date of accrual could  only         be  subsequent to August 5, 1945 because it was held in  the         previous suit that the suit was premature on the ground that         seven years since K was last heard of had not elapsed  then.         Since  the evidence was that he was last heard of on  August         5, 1945, the only possible date of accrual of the subsequent         cause  of  action could be seven years after the  date.  The         suits  were filed within three years of that date.  [273  H;         274 A-C]           (3)(a)  The  term ’right to sue’ occurring in  art.  2  of

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       Schedule  to the Punjab Limitation (Customs) Act 1  of  1920         must be equated with  cause of action." The "date of  death"         cannot be substituted for the date of accrual of the  "right         to use".  In the Limitation Act the accrual when intended to         be  tied to the date of some event is specified as the  date         of  that event.  In this case, it is not so.  It  cannot  be         held  that the date of accrual in both sets of suits is  one         and  the  same, that is to say, the actual date.  of  death.         [274 D]             (b) Wherever the accrual of a right or commencement of a         period  of limitation, within which a suit must be shown  by         the  plaintiffs to have been brought, could only  be  estab-         lished by proving the date of a person’s death, that         duty  must be discharged by the plaintiffs or the suit  will         fail.  But to carry the doctrine beyond that and to lay down         that the date of death must invariably be proved,   whenever         the  question  of limitation is raised in  such  cases  must         result  in stultifying or defeating legal right  and  wiping         out the effects of  a statutory presumption.  The accrual of         a cause of action based on untraceability of the owner could         not be said to depend at all on proof of either actual death         or  the  date of actual death of the owner.  It  accrues  as         soon  as death can be presumed and not a day earlier.   [278         D-F]         (c)  It  is not in every suit for possession that  the  com-         mencement  of the date of dispossession must be  established         by  the  plaintiffs.  It is only in a  suit  for  possession         based on the allegation by the plaintiff of his own  dispos-         session that the burden is governed by Art, 142 of the Limi-         tation Act.  [274 G]         (d)  In the instant ease, the plaintiffs were never in  pos-         session  and, therefore,there was no question of their  dis-         possession.  It was a pure and simple suit for possession on         the basis of title against which the defendants had not even         alleged adverse possession.  Therefore, there is no need  to         bring  in  the actual date of death constructively,  as  the         date  of the  presumed  dispossession or adverse  possession         has not been asserted anywhere.  [275 B]         (e) The plaintiffs have asserted and proved that the  period         of  seven years when K was last heard of by those who  would         in  the natural course of events have heard of or about  him         if he was alive, had elapsed and that their cause of  action         matured  within three years of their suits.   Assuming  that         the  concept of adverse possession of the defendants was  to         be  introduced,   the legal position is that  possession  of         defendants  could  not be adverse to K’s  reversioners  even         before K could be presumed to be dead. The defendants  them-         selves had set up. the plea that he must be still deemed  to         be  alive.  The plaintiffs could only be required  to  prove         K’s  death but not the date of his death or the date of  the         plaintiffs’ dispossession. Neither cases dealing with recov-         ery of possession on the plaintiffs’ allegation of their own         dispossession  nor those where proof of date of death was  a         necessary  statutory  duty  for showing that  the  suit  was         within time; are applicable in these cases.  [275 E-F]             Nepean  v. Doe D. Knight (English Reports 150  Exchequer         p. 1021), Jayawant Jivanrao Deshpande v. Ramachandra Narayan         Joshi, AIR 1916 Bom. 300 & 301., Lal Chand Marwari v. Mahant         Ramrup  Git & Anr. AIR 1926 PC 9, Jiwan Singh v. Kuar  Reoti         Singh & Anr. AIR 1930 All. 427, Kottapalli Venkateswarlu  v.         Kottapalli  Bapayya & Ors. AIR 1957 AP 380  Punjab v   Natha         AIR 1931 Lab. 582 (FB) & Ram Kali & Ors v. Naraian Singh AIR         1934 Oudh 298 & 299-300, refrered to.         254             (f) It is neither a part of the case of any plaintiff in

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       these  cases  nor necessary for the success of his  case  to         prove that K died on a particular date or that K died before         or  after somebody else.  The plaintiffs cannot  be  saddled         with the responsibility to prove this date.  [279 ,B]             (4) The suits were not barred by limitation because  the         causes of action in the previous litigation and the  litiga-         tion  now are different and the subsequent cause  of  action         has  arisen  within  three years before the  filing  of  the         suits. Assuming that the suits were filed beyond the  period         of  limitation  on   the actual basis of  their  claims  the         plaintiffs  are  entitled to succeed because this is  a  fit         case in which s. 14(1) Limitation Act could come to the  aid         of  the appellants.  They had been asserting repeatedly that         the  basis of their claim was that although the actual  date         of  death  of K could not be proved, yet, he  has  not  been         heard of for seven years.  That basis having emerged  within         three  years  before the filing of the  suits,  their  suits         could not be barred by time. If the causes of action did not         arise no question of its exceeding by the law of limitation,         could emerge.  [280 G]             The  previous suits did not fail for want  of  jurisdic-         tion.  The  delay  in bringing the present suits was due  to         the  fact  that no court could decree the claim  before  the         cause of action matured. Therefore, the cause of action of a         "like  nature"  to a defect of jurisdiction  is  present  in         these  cases, since the provision has to be  liberally  con-         strued.   The defect revealed by the evidence in the  latter         litigation  was  that the suits did not lie at all  as  they         were premature. This was a defect reasonably comparable to a         want of jurisdiction.  [280 A-C]             India Electric Works Ltd. v. James Mantosh & Anr. [1971]         (2) S.C.R. 397, followed.             (5)(a) If no cause of action could accrue at all  unless         and  until  the date of actual death of K  was  established,         there  could be no commencement of a period  of  limitation.         The  only possible point from which limitation  could  start         framing  in  these, cases is the date on which  seven  years         expired  from the date on which K was last heard  of.   This         was within three years before filing of the suits.  [280 D]             (b)  The issue in the earlier litigation was  whether  K         was actually shown to have died on a particular date.   This         was  quite different from the issue decided now,  which  was         whether K’s whereabouts had remained unknown for seven years         so that he could be presumed to be dead.  [280 F]         ARGUMENTS         For the appeliants:             The  legal presumption under Section 108 was not  sought         to be raised in the prior suits.  It was for the first  time         raised in the subsequent group of suits instituted in  Octo-         ber, 1952 based on the allegation that Kishan Singh was  not         heard of since 15th August, 1945.             This  submission  opens the questions (i)  when  is  the         presumption  of death to be raised and (ii) whether for  the         purpose  of proceedings in which it  is raised or any  prior         proceedings.   The presumption is to be raised in  the  pro-         ceedings where the question has been raised i.e. the  second         group  of  suit. However, there is no presumption as to  the         time  of  death of the person whose death is accepted  as  a         result of presumption.             The two are distinct matters--(i) the legal  presumption         of  death  and (ii) the time of death preceding  the  period         when  presumption  is drawn.  The death may be at  any  time         during  the preceding period of 7 years----the  period  that         has enabled the court to draw presumption of death.             The  law requires that if one has to establish the  pre-

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       cise  period during these 7 years at which such person  died         he must do so by evidence.         255             The  conclusion  of the court of  presumption  of  death         based  upon disappear ance from 15th August, 1945 cannot  be         ignored.         Death at any time on or after 15th August, 1945 does not  in         any  manner  adversely affect the case  of  the  appellants,         inasmuch  as  the parties had instituted  suits  (of  course         premature)  on  18th December 1945 (other  suits  some  time         later  decided  by a common judgment).  If the  parties  are         held entitled to the benefit of deduction of time from  18th         December 1945 to 3rd August, 1951, the death of Kishan Singh         even if it took place between 15th August, 1945 to any  date         before  3rd August, 1951 the suit are not barred by  limita-         tion.             On the pleading of the parties it cannot be assumed that         the presumption of death would justify acceptance of date of         death, any time prior to 15th August, 1945.             The period of limitation for  the suit  for   possession         was  3  years  The defendants had not pleaded in  the  prior         suit that the suit was. barred by limitation as  instituted.         In  other words it was not alleged that he had died  at  any         time  3  years prior to the institution of  the  suit  (18th         December,  1945). Actually death has not been admitted  even         on 15th August, 1945.             The trial Court and the District Judge held the suit  to         be  time barred not on the ground that his death  had  taken         place  at  a period exceeding 3 years from the date  of  the         institution  of  the first suit.  They have  apparently  not         ignored  the possibility of death having taken place  during         the period between 18th December, 1945 to 3rd August., 1951.         They  have  held the. suit to be time barred because it  was         considered  that the appellants are not entitled  to  deduct         the stated period spent in the prior suits.             Even  if  it is considered that death  had  taken  place         during  this period or any time after 15th August,  1945  or         during  the 3rd August to 31st October, 1952 the  suits  are         not time barred.             Preliminary  objection was raised by the respondents  as         to  the  effect  of the Punjab Customs  (Power  to  Contest)         Amendment  Act, 1973 (Punjab Act 12 of 1973).  It was  urged         that  the Act had come into force on 23rd January, 1973,  it         has  retrospective operation and bars all suits  to  contest         alienation  also including the suits for possession  of  the         property following a declaratory decree.   It was urged that         the  appeals  are barred as a consequence of repeal  of  the         provisions of Punjab Act II of 1920.             The  contention as to the effect of  Act 12 of 1973   is         not  correct.  The previous law on the subject of  right  to         contest alienation of immovable property and the  limitation         of  suits  relating  to  alienation  of-ancestral  immovable         property is regulated by two Acts.                          (1) Punjab Act II of 1920--Described an Act                       to restrict the powers of  the  descendents or                       collaterals   to  contest  an  alienation   of                       immovable property; and                          (2)  Punjab Act I of 1920  Described as  an                       Act to amend and consolidicate the law govern-                       ing the limitation of suits relating to alien-                       ations of ancestral immovable property etc.             The  present Act 12 of 1973 repeals  s. 6 of Act  II  of         1920.  It also amends s. 7 of the aforesaid Act.  Effect  of         the repeal of s. 6 and amendment of s. 7 merely is that  the         right  to.  contest  vesting  in the  collaterals  upto  5th

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       degree  has  been  done away with and the  suit  to  contest         alienation  of  ancestral  property  has  been  taken  away.         Under the previous existing law an alienation of  non-ances-         tral property could not be contested.         Act I of 1920 has also not been repealed.             The limitation provided for a suit for possession i.e. 3         years  is  still an existing provision of the  Act.   It  is         obvious that the legislature has retained         256         Act I of 1920 unrepealed so that the benefit of the  decrees         may  be available to all persons under s. 8 of the  Act  and         the period of limitation may be retained as before.             The  effect  of  the declaratory  decree  in  that   the         alienation  is   not binding against the  inheritance.   The         succession never remains in abeyance.  A person entitled  to         succeed  to  the  last male holder is entitled  to  sue  for         possession  on  the  basis of right  to  succession  to  the         property.         For the respondent:             The  principle  of  res judicata  would  be  immediately         attracted  if the plaintiffs allege the "same cause  of  ac-         tion" and seek the exclusion of the time because the earlier         suit  was  tried  on merits by a  competent   court   having         jurisdiction  and  was dismissed  holding  that   ’plaintiff         failed   to  prove  that Kishan Singh died on  15th  August,         1945.  This  finding would be binding between the parties in         the subsequent suits as they have been given after recording         the evidence and a full trial by, the competent court having         jurisdiction.             Therefore, the plaintiff is barred by principles of  res         judicata  from alleging the accrual of right to  sue  before         the filing of the earlier suits as  the same would  be   res         judicata.   The  plaintiff  is estopped  from alleging   the         accrual  of same cause of action, therefore, no question  of         exclusion  of  time inasmuch as the principle of  s.  14  of         exclusion of time arises only if  the cause of action is the         same.  Section 14 uses the  words "the proceeding is founded         upon  the same cause of action".  The language of s.  14  of         the Limitation Act by using the words "same cause of action"         makes  it very clear that time can be excluded for the  same         cause  of action only if the earlier suit is  dismissed  be-         cause  of  defect of jurisdiction or other cause of  a  like         nature. On the interpretation of s. 14 also the time  cannot         be  excluded for the reason that the earlier suit  was  dis-         missed  as  premature and the new suit was filed  on  a  new         cause  of  action, namely, Alla Singh and  his  line  became         extinct on the death of Kishan Singh on 15th of August, 1952         i.e.  after  the expiry  of’ seven years from  15th  August,         1945.   Since  a new cause of action was alleged  after  the         dismissal of previous suit, s. 14 cannot be attracted.             The  words "is unable to entertain it" mean that  it  is         not  able  to admit the matter for consideration  on  merits         i.e..  the. inability is of a formal nature but it does  not         mean inability to grant relief.             From the decisions one principle is deducible that s. 14         of the Limitation Act has to be construed harmoniously  with         s.  11 C.P.C.  Section 11 C.P.C. bars the filing of a  fresh         suit on the same cause of action whereas s. 14 of Limitation         Act allows  time to be.  excluded in the  previous   litiga-         tions was "founded on the same cause of action’’.           Section  12 says that if plaintiff is barred under  s.  11         C.P.C.  to file suit for any cause of action then  plaintiff         cannot file suit for a such cause  of action in any court to         which C.P.C. applies.         If  both.  s.  14 of Limitation Act and  principles  of  res

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       judicata  are  to operate then,   it    should    be    held         that    to   apply   s.   14   the   earlier suit  had  been         dismissed  on a technical ground of jurisdiction,  or  other         cause  of a similar nature, court is unable to entertain  it         without going into  the merits of the case.  In the  present         case  earlier  suits were dismissed  because  the  plaintiff         failed to prove the death of Kishan Singh and the extinction         of  line of Alia.  The words used by the High Court at  page         302 line 37 are:             "The  suit had been rightly dismissed as  premature"  do         not  mean that Kishan Singh was alive  but  it  means   that         plaintiffs   have  not  proved the  accrual  oj   cause   of         action  namely  the  extinction  of  line of Alia.  In these         circumstances  it is submitted that the suits were not  dis-         missed  on  the ground of defect of  jurisdiction  or  other         cause  of similar nature. for which the court was unable  to         entertain  it.   Section 14 of the Limitation Act  does  not         apply.   Plaintiffs  have failed to prove the date of  death         of Kishan Singh and the extinction of line of Alla within  3         years  of the filing of the suit.  Suits are therefore  time         barred.         257             Sections 107 and 108 of the Evidence Act do not help the         appellants. Rule of evidence in s. 107 is that it is for the         plaintiff  to  prove the death of a person if he  was  alive         within 30 years and s. 108 says that burden of proving  that         a man was ,dive is on the person who alleges he is alive  if         it  is proved that he has not been heard of for seven  years         by  those  who would naturally have heard of him if  he  had         even  alive.   In this case the  plaintiffs-appellants  have         alleged that Kishan Singh was last heard of on 15th  August,         1915 and singe then he is not heard of.  The onus is, there-         fore,  on the plaintiff-appellant under s. 107  of  Evidence         Act 10 prove as  to when Kishan Singh died.  It is;  Submit-         ted  that  Kishan  Singh may have died on  any  date  either         before 15th August, 1945 or immediately theereafter.   There         is no presumption that he died on the expiry of 7 years from         the  date  he  was last heard.  The date of  death  is  thus         required to prove by the plaintiff like any other fact.             The  suits are, therefore, barred by time and should  be         dismissed plaintiffs’ failure to prove death of Kishan Singh         within  three years  of the filing of suits.

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1944-1946/         67.             (From  the  Judgments and Decrees dated the  20th  July,         1964  of the Punjab High Court in L.P.As. Nos. 23 to  25  of         1960).         M.L. Sethi and Harder Singh, for the appellants.         S.K. Mehta and S. Ranga Raju, for Respondents No.s. 1--5.             The Judgment of A.N. Ray, C.J. and Jaswant Singh J.  was         delivered by Jaswant Singh, J.M.H. Beg, J. gave a dissenting         opinion.             JASWANT  SINGH, J. These three Appeals Nos.  1944,  1945         and  1946 of 1967 by certificate which are directed  against         the  common  judgment and decree dated July 29,  1964  of  a         Division  Bench of the High Court of Punjab and  Haryana  at         Chandigarh  involving  a  question of  limitation  shall  be         disposed of by this judgment.         The facts leading to these appeals are:         As appears from the pedigree table referred to in the  judg-         ment  under appeal, Chuhar Singh,  a descendant  of  Amrika,

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       son  of  Har Lal, sold land admeasuring 167  kanals  and  10         marlas  situate  in village Dhugga,  Tahsil  Hoshiarpur,  to         Bhagwan  Singh, the grandfather of defendants Nos. 1  to  6,         for  Rs.23/8/-  vide a registered sale deed dated  June  20,         1885.  After the aforesaid alienation, one Hamira, a collat-         eral  of Chuhar Singh, filed a suit for possession  by  pre-         emption  of 52 kanals, 13 marlas out of the  aforesaid  area         which was decreed in his favour on April 29, 1889 on payment         of  671/-.  The mutation in respect of the remainder of  the         land  admeasuring 114 kanals and 17 marlas was  attested  in         favour  of  Bhagwan  Singh on May 4, 1890.  Hamira  did  not         retain the property which he secured by pre-emption and sold         it  back  to Bhagwan Singh on September 20, 1890,  with  the         result  that  Bhagwan Singh again became the  owner  of  the         entire land which was originally sold tO him by Chuhar Singh         who died in 1896. On July 19, 1898, Jiwan, Bela, Jawahar and         Jawala,  descendants of Bharimian, another son of  Har  Lal,         filed  a representative suit for declaration to  the  effect         that the aforesaid sale by Chuhar Singh in favour of Bhagwan         Singh  would  not affect their reversionary  rights  as  the         aforesaid land was ancestral and the sale thereof was  with-         out         18--1458sc//76         258         consideration and legal necessity.  A Division Bench of  the         Punjab  Chief  Court finally disposed of the  said  suit  by         judgment  dated July 29, 1902 declaring that upon the  death         of  Alla Singh, adopted son of Chuhar Singh, and  extinction         of his line, the aforesaid sale of 1885 would not affect the         reversionary interests of Bela and Jawahar. This declaration         was  made subject to the condition that before these  plain-         tiffs or their successors-in-interest would take  possession         of  their share of the laud sold, they would pay to  Bhagwan         Singh  or his successors-in-interest a sum bearing the  same         proportion  of Rs.1611/- i.e. Rs.2378 minus 767/-) as  their         share in the land sold bore to the Whole area sold.  On  the         death  of Alia Singh, Kishan Singh, his only sou,  succeeded         him.   On  December 18, 1943, Jawahar Singh and  Bela  Singh         brought a suit for possession of land admeasuring 113 kanals         and 18 marlas situate in village Dhugga alleging that Kishan         Singh  having died on August 15, 1945, and the line of  Alia         Singh  having become extinct, they were entitled to  posses-         sion of the land in accordance with the aforesaid decree  of         the  Punjab Chief Court. This suit was followed by two  more         suits  of identical nature for the remainder of the land  by         two  other  sets  of collaterals of Bhagwan  Singh,  one  by         Waryam Singh and his three brothers who claimed half of  the         entire  holding  and  the other by Khazan  Singh  and  Jagat         Singh,  who  claimed one fourth share of the  holding.   The         Trial Court consolidated all these three suits and proceeded         to try  them  together, Eventually it decreed the first  two         suits in favour of the plaintiffs pursuant to the  aforesaid         decree  of  the Chief Court of Punjab  holding  that  Kishan         Singh  had died on August 15, 1945.  It, however,  dismissed         the  suit  brought by Khazan Singh and Jagat  Singh  on  the         ground that they being the successors-in-interest of Hamira,         who had brought the aforesaid pre-emption suit, were stopped         from  claiming possession of the land.  On appeal, the  Dis-         trict  Judge, Hoshiarpur, dismissed all the three  suits  as         premature  holding that the factum of Kishan  Singh’s  death         not  been established.  The decision of the  District  Judge         was affirmed in appeal by a Single Judge of the Punjab  High         Court by his judgment and decree dated August 3, 1951.   The         plaintiff’s  in the last mentioned suits, viz. Waryam  Singh         and  his three brothers, Jawahar Singh and Bela  Singh,  and

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       Khazan  Singh  and Jagat Singh again instituted three  sepa-         rate suits (out of which the present appeals have arisen) on         October  28,  1952,  December 16, 1952, and  May  12,  1953,         respectively for the same relief which was sought by them in         the previous suits.  In these suits, the plaintiffs  averted         as follows with regard to the cause of action :--                             "5.  After Alia, adopted son  of  Chuhar                       Singh,  deceased, his son Kishan Singh  became                       his  heir and representative. Now  the  where-                       abouts  of  Kishan Singh aforesaid,  have  not                       been  traceable  for more  than  seven  years.                       Since  the 15th Aug., 1945, no information  or                       intimation that he is alive has been  received                       by any of his relative or any other  concerned                       person.   Hence. he is considered as dead  and                       his suit is being filed.  The line of Alia has                       become extinct. Under these circumstances, the                       plaintiffs being collaterals of Chuhar  Singh,                       deceased vide the  pedigree-table  given                       259                       above, are entitled to get  possession of  the                       laud  of   half share, the sale of  which  has                       been cancelled vide the decree granted  by the                       Chief    Court,    subject  to    payment   of                       Rs.805/8/-   of  their  proportionate   share.                       Hence,  we have filed this suit.  The  parties                       are  governed by the Zamindara custom  in  the                       matters of succession.                             6. Prior to it, the plaintiffs had filed                       a suit for possession of this property  (land)                       on the 18th December, 1945, in the Civil Court                       at Hoshiarpur, alleging that Kishan Singh, son                       of  Alia who was the last man of the  line  of                       Alia, has died on 15th August, 1945  .....                             7. The suit of the plaintiffs,  detailed                       in para No. 6 above was based upon the  factum                       of  the death of Kishan Singh. The  plaintiffs                       had  no  personal knowledge about  this  fact,                       rather it was based on mere hearsay, but  this                       event of the 15th of August, 1945, came out to                       be false and such a decision was passed in the                       previous  suit  between the  parties  and  the                       parties are bound by the same.  But the where-                       abouts  of Kishan Singh, aforesaid,  have  not                       been  traceable since the 15th  August,  1945,                       according to the above facts mentioned in para                       No. 5.  After the 15th of August, 1952,  (1945                       ?) the event of his death is to be  determined                       according to law (under section 108) and facts                       (under section 114) Evidence Act.   According-                       ly,  Kishan Singh is to be considered as  dead                       after the 15th of August 1952(?) and he is not                       alive.   Two months prior to the 15th  of  Au-                       gust,  1945, he had been residing sometime  at                       Mauza Dhugga, District Hoshiarpur and sometime                       at  Mauza Sonion, District  Jullundur,  perma-                       nently.  Thereafter, he went  outside  towards                       Ahmedabad  for searching some job and  earning                       his  livelihood.  The last  information  about                       his presence in Ahmedabad was received on  the                       5th of August, 1945 and since then his  where-                       abouts have not been available.                             "..  10.  The right to sue  has  accrued                       against  defendants  Nos. 1 to  6  within  the                       jurisdiction of his district after the 16th of

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                     August,  1952, in the beginning of the  months                       of October, 1952 viz., after a period of seven                       years  since the whereabouts of  Kishan  Singh                       have  not been traceable and since he is  con-                       sidered to be dead according to law and so the                       Civil  Court of this District is competent  to                       try  this  suit ......  At  any  rate,  Kishan                       Singh died within a period of three years from                       the  date of filing the suit and so this  suit                       is  within  time.   At any  rate,  the  entire                       aforesaid period mentioned in para No. 6  from                       18-12-45  to 3-8-51 is liable to  be  deducted                       according to law and facts."             These  suits which were resisted by the  contesting  de-         fendants on a number of grounds,  were eventually  dismissed         by  the  Trial Court as time barred with  the  finding  that         though  Kishan  Singh had not  been heard for  ’seven  years         before the institution of the suits, the actual date         260         of this death had not been proved. The trial Court, however,         held  that the decree of the Punjab Chief Court  enured  for         the  benefit  of  the entire body of  reversioners  and  not         exclusively   for  the  benefit  of Jawahar Singh  and  Bela         Singh.   On appeal, the District Judge upheld the  dismissal         of  the  suits  adding  that   Hamira  having   successfully         brought  a suit for pre-emption in respect of a  portion  of         the  sale precluded not only himself but his  successors  as         well  from  acquiring  the property.  In this  view  of  the         matter, he opined that Jagat Singh and Khazan Singh were not         entitled to any share at all in the land. On further appeal,         a  Single  Judge of the Punjab High Court  decreed  all  the         three suits by his judgment dated October 28, 1959,  holding         that Kishan Singh having been treated as alive by. the  High         Court  when it passed the previous judgment dated August  3,         1951,  the conclusion of the courts below that Kishan  Singh         had  been  dead seven  years before the institution  of  the         present  suits could not be  sustained. While computing  the         period  of  limitation, the Single Judge also  excluded  the         time  spent  on the previous litigation from  1945  to  1951         under  section  14(1) of the Limitation Act.   It  would  be         advantageous  to  reproduce the observations  made  in  this         behalf by the. Single Judge:                       "Till  3rd of August, 1951, when the  judgment                       (of the High Court in the previous suits)  was                       delivered, the position was that the death  of                       Kishan Singh had not been established.                              Admittedly,  the whereabouts of  Kishan                       Singh  are still not known and, in my opinion,                       there can be no escape from the conelusion  on                       these  facts  that the death of  Kishan  Singh                       must  be  presumed under section  108  of  the                       Indian  Evidence Act as he had not been  heard                       of  for a period of seven years,. The  present                       suits  were brought between 28th  of  October,                       1952  and 12th of May, 1953. The  correct  ap-                       proach  to  reach a solution  of  the  present                       problem  is  to give allowance to  the  plain-                       tiffs,  if  found  necessary, for  the  period                       which  they spent in previous litigation  that                       is to say, from the years 1945 to 1951.  Under                       sub-section  (1) of section 14 of  the  Indian                       Limitation  Act,  the  time during  which  the                       plaintiff  has  been  prosecuting   with   due                       diligence another civil-proceeding, whether in                       a  court  of first instance or in a  court  of

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                     appeal,  against the defendant, shall  be  ex-                       cluded, where the proceeding is found upon the                       same  cause  of. action and is  prosecuted  in                       good  faith in a court which, from  defect  of                       jurisdiction or other cause of a like  nature,                       is  unable to    entertain it  .....  Both the                       previous litigation and the present are  found                       on  the  same cause of action.   The  previous                       litigation  ended  with the  judgment  of  the                       Punjab  High Court in which it was  held  that                       the suit was premature, the plaintiffs  having                       failed  to  establish  the  death  of   Kishan                       Singh  .....                             The plain fact of the matter is that  no                       proof is forthcoming of Kishan Singh continued                       existence  since 1945.  Since the judgment  of                       the High Court in 1951, where it was held that                       the death of Kishan Singh had not been  proved                       8 years have elapsed.  There can be no  escape                       from the conclusion                       261                       now  that  Kishan Singh’s death must  be  pre-                       sumed.  The decision of the High Court in 1951                       should provide a suitable ground for extension                       of time under provisions of section 14 of  the                       Indian Limitation Act.  The whole basis of the                       judgment  of the courts below, in my  opinion,                       is  erroneous.   It is not  a  requirement  of                       section  108 of the Indian Evidence  Act  that                       the date of death of the person whose death is                       to be presumed must be established.  All  that                       is  said is that if a person is not  heard  of                       for  a period of seven years, his death  maybe                       presumed."             The  contesting defendants then took the matter in  Let-         ters  Patent  Appeal to a Division Bench of the  High  Court         which  by  its Judgment dated July 29, 1964  set  aside  the         afore  Said judgment and decree of the Single Judge  holding         that  the  Single Judge was in error in  excluding.the  time         spent on the previous litigation by the plaintiffs by apply-         ing  section  14(1) of the Limitation Act.  Relying  on  the         decision of the Full Bench of the Lahore High Court in  Bhai         Jai  Kishan Singh v. People Bank of Northern  India,  I.L.R.         1944  Lah. 136, the Division Bench held that the words.  "or         other cause of a like nature" occurring in section 14(1)  of         the  Limitation Act had to be read ejusdem generis with  the         preceding  words  "relating to defect of  jurisdiction"  and         that it was not possible to give the benefit of that  provi-         sion to the plaintiffs as it could not be regarded that  the         court was unable to entertain the previous suits because  of         any  defect of jurisdiction or other cause of a like  nature         merely  because of the fact that the court came to the  con-         clusion  that the cause of action had not yet  arisen.   Ag-         grieved  by this judgement, the plaintiffs have come  up  in         appeal to this Court as already stated.             Before adverting to the contentions raised before us  on         behalf  of  the  appellants, we must first  dispose  of  the         preliminary  objection raised by Mr. Mehta, counsel for  the         contesting respondents, regarding the maintainability of the         appeals.   According  to Mr. Mehta,  the said  appeals  have         been rendered untenable and have to be dismissed in view  of         the  amendment introduced in section 7 of the Punjab  Custom         (Power  to Contest) Act, 1920 (Act 2 of 1920) by the  Punjab         Custom  (Power  to Contest) Amendment Act, 1973 (Act  12  of         1973)  which  has been given a  retrospective  operation  by

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       sub-section  (2)  of section 1 of the  Amending  Act.   This         contention  is,  in  our opinion,  wholly  misconceived  and         cannot  be  allowed to prevail as it overlooks  the  savings         clause contained in section 4 of the  Punjab  Custom  (Power         to  Contest) Act, 1920 (Act 2 of 1920) which has  been  left         untouched by the Punjab Custom (Power to Contest)  Amendment         Act, 1973 (Act 12 of 1973) and runs thus:                             "4.  Savings--This Act shall not  affect                       any  right to contest ’any alienation  or  ap-                       pointment  of an heir made before the date  on                       which this Act comes into force."             The alienation in question was admittedly made by Chuhar         Singh  in favour of Bhagwan Singh in 1885 i.e.  long  before         the  28th  day of May, 1920--the date on  which  the  Punjab         Custom (Power to Con-         262         test)  Act  1920 (Act 2 of 1920) came into force.   It  was,         therefore,  not at all affected by Act 2 of 1920.   In  this         view  of  the  matter, it is not necessary to  go  into  the         other  contention  raised by Mr. I Sethi,  counsel  for  the         appellants, to the effect that in any event the  preliminary         objection  raised by Mr. Mehta is not tenable as the  Punjab         Custom  (Power  to Contest) Amendment Act, 1973 (Act  12  of         1973)  had  not  the effect of  abrogating  the  declaratory         decree  already obtained by predecessors-in-interest of  his         clients prior to the coming into force of the Amending Act.             Having  disposed  of the preliminary objection,  we  now         proceed  to consider the contentions that have been  pressed         for  our consideration by Mr. Sethi, counsel for the  appel-         lants.   He has strenuously urged that section 14(1) of  the         Limitation Act was applicable to the facts and circumstances         of the present case and that the Division Bench of the  High         Court  has  grossly erred in not giving the benefit  of  the         provision  to the appellants which would have entitled  them         to the exclusion of the time from October 10, 1945 to August         3, 1951 spent in prosecuting with due diligence and in  good         faith the previous suits in the court of first instance  and         in  the courts of appeal which expressed their inability  to         entertain the suits on the ground that they were  premature.         There is no force in these contentions.             It cannot be and has not been disputed that the  present         suits  are governed by Article 2 of the Schedule annexed  to         the Punjab Limitation (Customs) Act,  1920 (Act 1 of   1920)         which  provides as follows :---         Description of suit    Period of    Time from which period                                limitation          begins to run         2. A suit for poss-         ession of ancestral         immovable property         which  has    been         alienated  on  the         ground  that   the         alienation is not         binding on the pla-         intiff according to         custom--          (a) if no declar-         atory decree of the    6 years    First :--If the alienation         nature     referred               is by  a  registered deed,         to in Article 1 is                  the date of registration          obtained.                             of such deed.                                           Secondly--If the aliena                                           tion is not by a regis                                           tered deed--                                          (a) if an entry regarding

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                                        the alienation in   the                                          Register of Mutation has                                          been attested by a Revenue                                          Officer under the Punjab                                          Land Revenue Act, 1887, the                                          date on which  the entry is                                          attested.         263         (1)               (2)                          (3)                                             (b) if such entry  has                                                 not been attested,                                                 the date on which                                                 the alienee takes                                                 physical   posses-                                                 sion of   the whole                                                 or part  of   the                                                 property alienated                                                 in   pursuance   of                                                  such alienation.                                              (c) in all other cases,                                                  the date on which                                                  the alienation co-                                                  mes  to  the know-                                                  ledge     of   the                                                   plaintiff.         (b) if such declaratory     3 years    The date on which the         decree is  obtained.                 right to sue accrues or                                                the date on which de-                                              claratory decree is ob-                                          tained, whichever is later         As the plaintiffs had already obtained a declaratory decree,         they  had  to, in order to be able to succeed,  bring  their         suits  within three yers of the accrual of the right to  sue         (which according to the  well settled judicial opinion means         the  accrual of the right to seek relief) viz. within  three         years  of  the death of Kishan Singh when the line  of  Alia         Singh became extinct.  They had to prove affirmatively  that         the  death of Kishan Singh took place within three years  of         the institution of the suits.  The contention of counsel for         the  plaintiffs  is, however, that Kishan Singh  not  having         been  heard of for more, than seven years since  August  15,         1945,  a  presumption of the factum or his death has  to  be         drawn  at  the expiration of seven years from that  date  in         terms of section 108 of the Evidence Act.  We find it diffi-         cult to accept this contention.  Granting that Kishan  Singh         has   to   be presumed to be dead, it cannot  be  overlooked         that under section 108 of the Evidence Act, the precise time         of the death is not a matter of presumption but of  evidence         and  the  onus of proving that the death took place  at  any         particular time within seven years lies upon the person  who         claim  a right for the establishment of which the  proof  of         that fact is essential.  The plaintiffs had not only, there-         fore, to prove that Kishan Singh 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 seven years when Kishan Singh’s death  occurred.         This they have miserably failed to prove. In the absence  of         such  proof,  it cannot be held that the present  suits  had         been brought within three years of the accrual of the  right         to  sue.  We are supported in this view by a catena  of  au-         thorities. In Nepean v. Doe D. Knight (1837)  2 M & W   894:         7L  J  Ex 335  Lord Denman delivering the  judgment  of  the         Court observed :-                       "The  doctrine  laid  down is,  that  where  a                       person  goes abroad, and is not heard  of  for

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                     seven  years, the law presumes the  fact  that                       such  person is dead, but not that he died  at                       the  beginning  or the end of  any  particular                       period                       264                       during  those  seven  years; that  if  it  be.                       important  to anyone to establish the  precise                       time of such person’s death, he must do so  by                       evidence  of some sort, to be laid before  the                       jury  for that purpose, beyond the mere  lapse                       of  seven  years since such  person  was  last                       heard  of.  Such inconveniences may  no  doubt                       arise,  but they do not warrant us  in  laying                       down a rule, that the party shall be  presumed                       to  have  died on the last day  of  the  seven                       years,  which would manifestly be contrary  to                       the fact in almost all instances."             This case was followed by a Division Bench of the Bombay         High Court as far back as 1916 in  Jayawant Jivanrao   Desh-         pande  v. Ramchandra Narayan Joshi (A.I.R. 1916 Bom. 300)             A  similar  view  was taken by  the  Privy  Council   in         Lalchand  Marwari v. Ramrup Gir (LIII I.A. 24:  A.I.R.  1926         P.C. 9) where it was observed :-                             "Under  the Indian Evidence. Act,  1872,                       s.  108, when the-Court has to  determine  the                       date of the death of a person who has not been                       heard  of  for  a period of  more  than  seven                       years, there is no presumption that he died at                       the  end of the first seven years, or  at  any                       particular date."                           Another  case in point is jiwan  Singh  v.                       Kuar  Reoti  Singh & Anr.  (A.I.R.  1930  All.                       427), where it was held :-                             "The  presumption raised by section  108                       is confined to the factum of death and not the                       exact  time  when  death  may  have  occurred.                       Where  a party affirms that a  certain  person                       died on or before a particular date, that fact                       has to be established by positive evidence."                       Similar  view  was  expressed  in   Kottapalli                       Venkateswarlu  v.  Kottapali  Bupayya  &  Ors.                       (A.I.R. 1957 A.P. 380).  In Punjab  &   Ors.v.                       Natha  & Ors. (A.I.R. 1931 Lab. 582).  a  Full                       Bench    of  the Lahore High Court observed :-                             "Where  a person has not been  heard  of                       for seven years when a suit is instituted,  s.                       108 comes into operation and raises a presump-                       tion  that at the institution of the  suit  he                       was dead, but no presumption arises as to  the                       date  of his death, which has to be proved  in                       the same way as any other relevant fact in the                       case."                           Again  in Ram Kali & Ors. v. Narain  Singh                       (A.I.R. 1934 Oudh 298 F.B.) it was laid down:                             "If  a person has not been heard of  for                       seven  years,  there is a presumption  of  law                       that he is dead: but at what time within  that                       period he died is not a matter of  presumption                       but  of evidence and the onus of proving  that                       the  death took place at any  particular  time                       within  the seven years lies upon  the  person                       who  claims  a right to the  establishment  of                       which that fact is essential."         265             In  the instant cases, assuming that Kishan  Singh  died

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       within  seven years of the institution of the suits  out  of         which the present appeals have arisen, even then the benefit         of the section 14 cannot be allowed to the appellants.  This         provision  in so far as it is material for our purpose  runs         as follows :-                              "14(1).  In  computing  the  period  of                       limitation  prescribed for any suit the  time,                       during which the plaintiff has been  prosecut-                       ing with due diligence another civil  proceed-                       ing,  whether in a court of first instance  or                       in  a Court of Appeal, against  the  defendant                       shall  be  excluded, where the  proceeding  is                       founded  upon the same cause of action and  is                       prosecuted  in  good faith in a  Court  which,                       from defect of jurisdiction, or other cause of                       a   like  nature,  is  unable   to   entertain                       it  ............  "             It would be noticed that three important conditions have         to  be  satisfied  before the section can  be  pressed  into         service.  These three conditions are--(1) that the plaintiff         must  have prosecuted the earlier civil proceeding with  due         diligence;  (2) the former proceeding must have been  prose-         cuted  in good faith in a court which from defect of  juris-         diction or other cause of a like nature was unable to enter-         tain  it and (3) the earlier proceeding and the  later  pro-         ceeding must be based on the same cause of action.             Now  the words "or other cause of a like  nature"  which         follow  the  words  "defect of jurisdiction"  in  the  above         quoted provision are very important.  Their scope has to  be         determined  according to the rule of ejusdem  generis.   Ac-         cording  to that rule, they take their colour from the  pre-         ceding  words "defect of jurisdiction" which means that  the         defect must have been of an analogous character barring  the         court  from entertaining the previous suit. A Full Bench  of         the  Lahore  High Court consisting of  Hatties  C.J.,  Abdur         Rahman, J and Mahajan J. (as he then was) expressed a  simi-         lar view in Bhai Jai Kishan Singh v. People Bank of Northern         India (supra).         In  the instant cases, it is not denied by  the’  plaintiffs         that  the Court which tried the previous suits was not  pre-         cluded  from  entertaining  them because of  any  defect  of         jurisdiction.   We have, therefore, only to see whether  the         said  court  was  unable to entertain the  former  suits  on         account  of any defect of an  analogous  character.  Even  a         most  liberal approach to the question does not impel us  to         hold  that the court trying the earlier suits was unable  to         entertain  them  on any ground analogous to  the  defect  of         jurisdiction.In  Dwarkanath  Chakravarti  v.  Atul   Chandra         Chakravarti  (I.L.R. 46 Cal. 870) where the court trying the         previous  suit  had refused to entertain a  claim  for  rent         because  it was premature, it was held that in a  subsequent         suit  for the aforesaid rent, the plaintiff could  not  rely         upon  the provisions of section 14(1) of the Limitation  Act         and  say that the time did not run against him  while  those         proceedings were being prosecuted.  Again in Palla Pattabhi-         ramayya & Ors. v. Velaga Narayana Rao (A.I.R. 1960 A.P. 625)         it  was held that the fact that the previous suit  was  dis-         missed  as  the plaintiff had no cause of action was  not  a         ground which was covered by section 14 (1).         266         Thus  it  could not be held that the court which  tried  the         previous  suits but eventually threw them out as.  premature         suffered   from  inability or incapacity  to  entertain  the         suits  on  the ground of lack of jurisdiction or  any  other         defect of the like character.  Accordingly the exclusion  of

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       the  period from December 18, 1945 to August 3, 1951  sought         by  the  appellants cannot be legitimately allowed  to  them         while computing the period of limitation.             There  is  also another factor which  prevents  us  from         granting the benefit of section 14(1) of the Limitation  Act         to  the appellants.  It would be seen that in  the  previous         suits,  the plaintiffs had averted that the cause of  action         accrued  to  them  on the death of Kishan  Singh  which  had         occurred  on  August  15, 1945.  They   have,   however,  as         already  indicated  by reference to the  averments  made  in         paragraphs  5,  6, 8, 9, and 10 of the  petition  of  plaint         based the present suits on a different cause of action.   It         is, however, not necessary to dilate upon this aspect of the         matter  in  view of our categoric finding that  the  earlier         suits did not suffer from any defect of jurisdiction or  any         other defect of the like character which could have preclud-         ed the court from entertaining them.             It  is also significant that the protection  of  section         14(1)  of the Limitation Act was not claimed by  the  plain-         tiffs  either in the Trial Court or in the  first  appellate         court.             Assuming, therefore, that Kishan Singh died within seven         years  of  the institution of the suits. out  of  which  the         present  appeals  have arisen even then  the  protection  of         section  14(1) cannot be allowed to the appellants and.  the         suits  have to be dismissed as time barred in terms of  sec-         tion 5 of the Punjab Limitation (Customs) Act, 1920, (Act  1         of 1920) which is reproduced below for facility of reference         :-                             "5.  Dismissal of suits of the  descrip-                       tion specified in the act if instituted  after                       the period of limitation herein prescribed has                       expired.   Subject  to the   provisions   con-                       tained in sections 4 to. 25 (inclusive) of the                       Indian Limitation Act 1903, and  notwithstand-                       ing anything to the contrary contained in  the                       first schedule of the said Act, every suit, of                       any  description  specified  in  the  schedule                       annexed  to  this Act,  instituted  after  the                       period  of limitation prescribed  therefor  in                       the  schedule  shall  be  dismissed,  although                       limitation has not been set up as a defence."             As  a  result of the foregoing discussion,  the  appeals         fail  and  are hereby dismissed.  In view, however,  of  the         circumstance  of the case, the parties are left to  pay  and         bear their own costs in these appeals.             BEG,  J.--The  question  before us is:  Were  the  three         suits,  the  first  instituted on 21st  October,  1952,  the         second  on  18th December, 1952, and the third on  5th  May,         1953,  tried  and  heard together, cut of  which  the  three         appeals before us arise, filed within time, and if they were         filed beyond time, whether the plaintiffs in each suit  were         entitled to the benefit of Section 14 of the Limitation  Act         ?         267             Plaintiffs  in  the three suits  instituted  in  circum-         stances explained fully by my learned brother Jaswant Singh,         included all those persons who could sue as reversioners  of         Kishan  Singh if it was proved that he was dead or  presumed         to be dead; and, they are all  appellants before us.  It  is         evident from a bare statement of the case set up in each  of         the  identically similar plaints in the suits now before  us         that, as three previous suits filed by these very plaintiffs         in  1945  for the same reliefs had failed against  the  same         defendants  for  want of proof of date of  death  of  Kishan

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       Singh,  the suits now before us were based on somewhat  dif-         ferent allegations setting up a new cause of action.  Other-         wise obviously, they would have been barred by res judicata.         As the learned Single Judge, before whom the three cases now         before us first came up in the High Court, had pointed  out,         the  earlier suits had failed because they were held to.  be         pre-mature  so. far as the cause of action now before us  is         concerned  and  for want of proof of the date  of  death  of         Kishan  Singh  so far as the actual cause of action  set  up         there was concerned.  We also indicated, quite clearly,  how         the causes of action in the earlier and later sets of  liti-         gation were quite different. and why the new cause of action         arose within three years before the filing of the suits.             Considerable confusion seems to have been caused by  the         prolixity  of  pleadings in the case so that,  although  the         plaintiffs  asserted clearly the accrual of a new  cause  of         action,  with  the aid of a presumption, they  were  saddled         with  the responsibility to discharge another onus  tied  to         the  proof of a particular date which had been abandoned  by         them after their dismal failure in the earlier litigation to         prove  the  actual date of death of Kishan  Singh  who.  had         disappeared.   Could  they fail again for  the  same  reason         although  the cause of action they set up is fresh and  dif-         ferent  and  arose within three years before filing  of  the         suits  ?   That  is the real question  we  have  to  answer.         Perhaps  the  way in which I look at the question  and  have         stated  it  makes. an answer in  the  negative  unavoidable.         Hence,  my  inability, with great respect,  to  concur  with         another  view  put  forward by my  learned  brother  Jaswant         Singh.             I think that the learned Single Judge, dealing with  the         question  of  limitation in the High  Court,  had  correctly         summarised  the.  whole position and found as  follows  even         without  going into the question of burden of proof of  date         of death of Kishan Singh:                             "All  the three sets of plaintiffs  have                       come up in second appeal to this Court and Mr.                       M.L.  Sethi  has addressed a  very  persuasive                       argument on  the question of  limitation which                       in reality is now the only substantial  matter                       in  dispute.  He has pointedly brought  to  my                       notice  the anomalous and baffling   situation                       in   which the plaintiffs  have  been  placed.                       According to the judgment of the High Court of                       3rd August, 1951, it was found that the  death                       of Kishan Singh had not been proved.  In other                       words,  Kishan Singh was deemed to  have  been                       alive  at the time when the High Court  decree                       was  passed on 3rd of August, 1951.   If  that                       position  is accepted, as indeed it must,  the                       conclusion of the                       268                       Courts below, that Kishan Singh had been  dead                       seven  years  before the  institution  of  the                       present  suits, cannot be sustained.  To  this                       position  there is the added  complication  of                       the  defendant’s  own  admission  that  Kishan                       Singh was alive at the time when the statement                       was  made by their counsel Milkhi Ram on  27th                       of  April,  1953.   I find  myself  unable  to                       assent  to the proposition on which both  the,                       courts  below have founded  their  conclusions                       that suits must be. regarded as barred by time                       as  the date of death of Kishan Singh had  not                       been  proved.  The District Judge has  arrived

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                     at   his  conclusion because in  the  previous                       suits  it was asserted that Kishan  Singh  had                       died on 15th of August, 1945.  As the death of                       Kishan  Singh had not been proved,  the  suits                       were  dismissed  up in the  High  Court  being                       premature.  It passes my comprehension how  it                       can now be said  that Kishan Singh died  some-                       time   before 1945  and the suits having  been                       brought more than three years after his  death                       are now barred by statute.  The previous suits                       filed  by the three different sets  Of  plain-                       tiffs  were  founded on  the  allegation  that                       Kishan Singh had died in Ahmedabad some  where                       in  August  1945.   A good deal  of  oral  and                       documentary  evidence  was led in  support  of                       Kishan  Singh’s death.  The conclusion of  the                       learned  District Judge (Mr. Chhakan Lal)  was                       that  the  plaintiffs  had  not  succeeded  in                       establishing the death of Kishan Singh and  it                       could  not,  there, be held that the  line  of                       Alia had become extinct.  In the judgment,  in                       second  appeal, of Harnam Singh J.,  the  only                       question which, was discussed was whether  the                       death  of Kishan Singh had been proved. It  is                       pertinent  to observe’ that in the High  Court                       it was common ground between both the  parties                       that the: case did not fall under section  108                       of the Indian Evidence Act. Like the  District                       Judge, Harnam Singh J.. discussed the oral and                       documentary  evidence, which had been  adduced                       by the parties and agreed with the finding  of                       the  lower appellate Court.  Till 3rd  of  Au-                       gust,  1951, when the judgment (of  the  HC-in                       the previous suits) was delivered. the.  posi-                       tion  was that the death of Kishan  Singh  had                       not been established".             It seems to me that the learned Single Judge had  suffi-         ciently  indicared that the cause of action in the  previous         litigation was different from the one now before us inasmuch         as  the facts now proved indisputably, showing  that  Kishan         Singh must be presumed to be dead, could not be and were not         set up in the. earlier suits.  In 1945, this cause of action         had  not  accrued.  As the learned Single  Judge  held,  the         effect  of the judgment in the formed suits was  that  those         suits  were premature.  This could not be said of the  suits         now before us in appeal.             It  is  true that the learned Single Judge  had  thought         that, alternatively, Section 14 of the Limitation Act  could         apply  inasmuch  as  the causes of action  in  the  previous         litigation as well as in the present litigation were identi-         cal.   In  so far as the learned  Single  Judge   postulated         though  for  a  limited purpose, an identity  of  causes  of         action  of  the previous and the present sets of suits,  the         assumption was inconsis-         269         tent  with his own emphatically expressed opinion  revealing         the difference in the causes of action. The  plaints in  the         suits before us set out the history of the whole  litigation         and  clearly  set  up a case founded on new  facts,  not  in         existence  at  the time of the earlier litigation,  and  ex-         pressly state why the plaintiffs now rely on the presumption         of death of Kishan Singh.             The  identically similar plaints of the  plaintiffs  now         before us were not based upon any assertion or plea of their         own dispossession.  For such suits the period oil limitation

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       was given in Article 2 to the schedule of the Punjab Limita-         tion  (Customs) Act of 1920. The provisions are set  out  in         the  judgment  of  my learned brother  Jaswant  Singh.   The         period of limitation for such suits is three years from "the         date  on  which right to sue accrues or the  date  on  which         declaratory decree is obtained, whichever is later".  If the         previous  suits were dismissed, as it seems to me that  they         were,  on the ground inter alia, that they  were  premature,         the cause of action could only be said to have accrued after         their institution.             It  seems  to me that the learned  District  Judge,  the         fianl Court of facts in the suits now before us, had  failed         to  determine the question whether Section 108 of  the  Evi-         dence  Act  could come to the aid of the plaintiffs  on  the         erroneous  assumption  that, in any  case,  the  plaintiffs’         suits  would  be barred by time as the  plaintiffs  had  not         proved  when  Kishan Singh had died.  The  learned  District         Judge seemed to hold the view that not only would the plain-         tiffs’ suits be barred by limitation, because the plaintiffs         could not prove the actual date of Kishan Singh’s death, but         also that the presumption under section 108 itself will  not         be  available to a party which could not prove the  date  of         death of the person to be presumed to be dead.  At any rate,         the learned District_ Judge was far from clear on the  ques-         tion  whether Section 108 would apply to the case.   He  re-         corded his conclusion as follows:                           "So, it is clear from the above discussion                       that the plaintiffs appellants have failed  to                       show that their suits are within time from the                       date  of the death of Kishan Singh.  No  doubt                       the presumption is there that Kishan Singh  is                       not heard of for the last 7 years but the date                       of  death was very necessary to be proved  and                       this has not been done by any of the  witness-                       es".             If the date of death of Kishan Singh had to be proved by         the  plaintiffs, no question of invoking the aid of  a  pre-         sumption  to prove death could arise.  Proof of death  would         dispense  with  the need reply on any  mere  presumption  of         death.  The result of the District Judge’s failure was  that         the  Single  Judge of the Punjab High Court  had  to  record         essential  findings  of fact on this  crucial  question.  of         availability of the presumption of death.  These  indicated,         beyond  the shadow of doubt, that the plaintiffs were  enti-         tled to the benefit of the presumption laid down by  Section         108  of  the Evidence Act.  This meant that,  on  new  facts         asserted  and proved, Kishan Singh could be presumed  to  be         dead when the suits now before us were instituted in         270         1952 and 1953.  And, this presumption of the death of Kishan         Singh having become available to the plaintiffs within three         years of the suits and not before, no occasion for  applying         Section 14 Limitation Act could arise.             The defendants, while pleading the bar of limitation  to         the  suits had, quite inconsistently, also tried to  suggest         that Kishan Singh was either alive or must be assumed to  be         alive.  The plaintiffs could not be expected, on their  plea         that,  proof of date of death of Kishan Singh being  absent,         they were relying only on the presumption of death, to  lead         evidence Of any date of death.  All that could be reasonably         expected  from them was to show that the presumption  became         available  to them within three years before the  filing  of         their  suits.   The learned Single Judge of the  High  Court         had, in my opinion correctly, recorded the following finding         which  made the presumption of death of Kishan Singh  avail-

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       able to the plaintiffs:                             "The plain fact of the matter is that no                       proof is forthcoming of Kishan Singh continued                       existence  since 1945. Since the  judgment  of                       the High Court in 1951, where it was held that                       the  death  of Kishan Singh had not  been  not                       proved,  8 years have elapsed.  There= can  be                       no. escape from the conclusion now that Kishan                       Singh’s death must be presumed".                       The learned Single Judge had also observed:                             "The decision of the High Court in  1951                       should provide a suitable ground for extension                       of time under provisions of Section 14 of  the                       Indian Limitation Act.  The whole basis of the                       judgment  of the Courts below, in my  opinion,                       is  erroneous.   It is not  a  requirement  of                       section  108 of the Indian Evidence  Act  that                       the date of death of the person whose death is                       presumed  must  be established.  All  that  is                       said is that if a person is not heard of for a                       period  of seven years, his death may be  pre-                       sumed.  There is no presumption as to the time                       of  death at any particular time  within  that                       period".         As I have already indicated, there was no need here to  seek         the aid of the provisions of Section 14 Limitation Act.            In Mohd. Khalil Khan v. Mohboob Ali Mian,(1) it was  laid         down:  "A rough test, although not a conclusive one,  as  to         whether the cause of action in a subsequent suit is the same         as  that  in  the former suit, is to see  whether  the  same         evidence  will sustain both suits, and regard should be  had         to the allegations in the two suits, and not the facts found         by the Court in the former suit".  On the facts of the cases         before  us, we find the evidence sought to be given  in  the         previous suits was that Kishan Singh had died on a  particu-         lar date (i.e. 15th. August, 1945), but, the evidence in the         subsequent  suits (now before us for decision) was not  that         he  had died on a particular date but that he had  not  been         heard of from 5th August, 1945, up.to the time of the filing         of  new  suits.   This evidence could not be  given  in  the         previous suit’s.  Hence, the above test is satisfied.         (1) A.I.R. 1949 P.C. 78, 86.         271                In  Smt. Mahadevi v. Kaliji Birajman,(1) it was  held         that,  if certain additional facts had to be proved for  the         success  of the subsequent suit, the causes of action  would         differ.   It  did not matter if there is  a  certain  common         ground to be covered by the evidence in both sets of  cases.         This  test  would also be satisfied in cases before  us  now         because the additional facts show that Kishan Singh had  not         been heard of by those who would have otherwise heard of him         in  the course of seven years.  This evidence could  not  be         led  at  all in the previous suits as they were  filed  very         soon after the alleged date of death of Kishan Singh.         If causes of action differ from suit to suit, the accrual of         the  cause action can also not be tied down to a  particular         kind of fact such as the date of actual death of the  holder         of the property.  Once it is held that the causes of  action         differ  for purposes of their accrual, their  accrual  could         not  be  made  to depend on facts of one  type  only.  Facts         denoting  their accrual must differ from case to  case.   Of         course,  proof of date of actual death is conclusive.   But,         where the basis of the right to sue is presumption of  death         the  date of accrual of the right is the date on which  that         presumption matures.

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             I have set out above the reasoning which appeals to me         and  makes  the  decision of this Court  in  India  Electric         Works  Ltd. v.  James  Mantosh & Anr.,(2) applicable to  the         cases  now  before us.  In that case, the  appellant  before         this Court was a defendant tenant in a suit for recovery  of         damages with interest and costs.  In a previous suit     the         predecessor-in-interest  of the plaintiff had sued  the  de-         fendant  for  ejectment, but the defendant had continued  in         occupation of the premises as the suit was compromised.  The         accommodation was requisitioned on 2nd February, 1945. After         the  accommodation was released by the Govt. on 21st  Novem-         ber,  1945, the plaintiff filed two suits against  defendant         one for the recovery of damages upto 1st February, 1944, and         another for damage’s from 22nd November, 1945, upto the date         of  recovery of possession although there was no  suit   for         possession.   When the matter came up before the High  Court         in  appeal, the High Court disallowed the claim  for  future         mesne profits  on the ground that it "was a pure money  suit         and  not  a  suit for recovery of  possession  of  immovable         property  and  for mesne profits  under Order 20,  Rule  12,         Civil  Procedure  Code".  The plaintiff then filed  a  third         suit on 5th November, 1956, for recovery of Rs.28,650/    as         damages with interest thereon for a period from 22nd  Novem-         ber, 1948, to 5th November, 1956.  The benefit of Section 14         of the Limitation Act was claimed for the amount claimed for         the period beyond three years.  Two of the learned Judges of         this  Court, Shah and Grover, JJ., held that,  although  the         claim for future mesne profits, not having been satisfied by         the money suit of 1948,  in which the   decree of the  Trial         Court was Set aside on 30th June, 1955, by the   High Court,         a  fresh  cause of action arose from 30th June,  1955,  yet,         it  was  unnecessary to decide the case  on  that  principle         because  the   Court was satisfied that, in any event,  Sec-         tion 14(1) of the Limitation         (1) 1969 All L.J. 896.          (2) [1971] (2) S.C.R. 397.         272         Act,  which had to be construed liberally, would  cover  the         period for which the claim was said to be barred by  limita-         tion.  Though, the third learned Judge, Hegde, J., seemed to         be of the opinion that Section 24(1) of the Li,mitation  Act         could not help the plaintiff, yet, following the decision of         the   Judicial   Committee in  Mst.  Ranee  Surno  Moyee  v.         Shooshee Mokhee Burmonla & Ors. (1) which had governed later         decisions of the Privy Council and various High Courts a new         cause  of action, arising within the period  of  limitation,         would , ensure to the benefit of the plaintiffs.             It seems to me that the lines on which the case of India         Electric  Works (supra) was decided enable us  to  correctly         decide  whether a new cause of action had accrued in  favour         of  the plaintiffs in the suits before us, which were  filed         within  three years of the accrual of this cause of  action,         as  well  as  on the question whether, if this  be  not  the         correct position, Section 14(2) of the Limitation Act  could         be invoked by plaintiffs.  Indeed, the view accepted by  the         three  Judges of this Court, that it is enough to  institute         proceedings within the prescribed period from the accrual of         the  fresh  cause of action, appears to me  to  provide  the         common  view we cannot reject.  This view would apply if  we         agree,  as  my learned brother Jaswant Singh  does,  that  a         cause of action had arisen here.             In  State  of  Madras v.V.P. Agencies  &  Anr.,(2)  Das,         C..J.,  referred to various expositions of the  meanings  of         the term "cause of action",  including that by Lord  Watson,         in Mst. Chand Kour v. Partap Singh,(3) where we find (at  p.         1310):

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                           "Now  the cause of action, has no  rela-                       tion whatever to the defence which may be  set                       up  by the defendant, nor does it depend  upon                       the character of the relief  prayed for by the                       plaintiff.  If refers entirely to the  grounds                       set  forth in the plaint as the cause  of  ac-                       tion,  or, in other words, to the  media  upon                       which  the plaintiff asks the court to  arrive                       at a conclusion in his favour".             The  expression  "cause of action"  has  sometimes  been         employed  to convey the restricted idea of facts or  circum-         stances  which  constitute either the  infringement  or  the         basis  of a right and no more.  In a wider and more  compre-         hensive  sense, it has been used to denote the whole  bundle         of  material facts which a plaintiff must prove in order  to         succeed.   These are all those essential facts  without  the         proof  of which the plaintiff must fail in his  suit.   Now,         whether  we  use the expression in the narrower  or  in  the         wider  sense,  in the case before us, the  death  of  Kishan         Singh  was certainly an essential part of the cause  of  ac-         tion.  It had to be proved to enable the plainttiffs to  put         forward  their claims to succeed at all. But, proof  of  the         date  of death was not essential or indispensable  for  that         purpose.  It could only become material in deciding  whether         the right which had accrued had         (1)12 Moore’s I.A. 244.  (2) A.I.R. 1960 S.C. 1309 at 1310.                                  (3) 15 Ind. App. 156.         273         been  extinguished by the law of limitation.  Both the  nar-         rower  and  the wider sense of the term  "cause  of  action"         would certainly include all those facts and circumstances on         the  strength of which the plaintiffs urged that  they  were         entitled to the benefit of the obligatory presumption of law         contained in Section 108 of the Evidence Act.  As these were         not  available to the plaintiffs before the expiry of  seven         years from 5th August, 1945, it does not seem to be possible         to  urge  that this cause_ of action had  arisen  more  than         three  years before the filing of the suits now  before  us.         Applying the tests stated above, the causes of action in the         earlier  and  later  litigations would, in  my  opinion,  be         materially different.  We could only hold that no cause  of.         action had arisen at all if we assume that Kishan Singh  had         not  died  at  all. And, how could we  assume  that  without         disregarding  Section  108 Evidence Act ? If  we  cannot  do         that,  the cause of action could only accrue when  we  could         presume that he is dead, And, the date of its accrual  could         not  possibly lie a day earlier than 7 years after  5th  Au-         gust,1945, when Kishan Singh was last heard of.             As indicated above, the identity of the relief asked for         in  the  earlier and later suits does not matter.   It  also         does  not  matter that the defendant in both sets  of  suits         have. attempted to suggest that Kishan Singh is still alive.         It iS they who had asserted that the plaintiffs’ rights were         extinguished  by  the operation of the  law  of  limitation.         Therefore,  strictly speaking, it appears to me that it  was         for the defendants to establish, if they could, that  Kishan         Singh  was  either alive or had died more than  three  years         before  the ’suits were filed.  There is no proof of  either         of  these  here,  The presumption under Section 107  of  the         Evidence  Act could not. come to the aid of  the  defendants         when the plaintiffs had established facts necessary to raise         the  presumption  under  Section 108 of  the  Evidence  Act.         There seemed to be irrefutable evidence that, after a letter         of Kishan Singh, received at Ahmedabad on 5th August,  1945,         nothing  had been beard or was known about him.  Hence,  the

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       plaintiffs  relied  on  the presumption  under  Section  108         Evidence Act ’because ’they could not prove the actual  date         of  death which had a bearing only on the bar of  limitation         set  up  by the defendants.  As has been pointed  out  some-         times,  the  function of a presumption is to fill a  gap  in         evidence.   In these circumstances, it seems to me that  the         defendants  should  have been called upon  to  show,  before         relying upon the bar of limitation, how the death of  Kishan         Singh took place on a date. beyond three years of the filing         of  the  suit  before the question of  applying  Section  14         Limitation Act could arise at all.             The plaintiffs could only be required to show the accru-         al of their cause of action within the prescribed period  of         limitation. They had, obviously, discharged that burden.  If         the "media", to use the term employed by Lord Watson, quoted         earlier,  upon  whiCh the plaintiffs rest their  cases,  are         different  in the previous and subsequent  litigations,  the         causes  of  action  are different, as held  by  ray  learned         brother  Jaswant  Singh  also.  And, if the  two  causes  of         action  are  different,  each  with  a  different  date   of         accrual--that  being  the basic-difference between  the  two         sets of suits--we have only to determine the date         19--1458SCI/76         274         of  accrual  of the second cause of action. If  the  alleged         date of death of Kishan Singh was the date of accrual of the         previous cause of action, the date of accrual of the  second         could  only  be something other than this date of  death  of         Kishan Singh.  It could not possibly be the same.  And, that         other  date of accrual could only be subsequent to  5th  Au-         gust, 1945, because, as indicated above, it was held in  the         previous  suit  that ,the suit was premature on  the  ground         that seven years since Kishan Singh was last heard of on 5th         August, 1945, had not elapsed then.  Since the evidence  was         that he was last heard of at Ahmedabad on 5th August,  1945,         the only possible date of accrual of the subsequent cause of         action  here could be seven years after that (i.e.  6th  Au-         gust,  1952).  The suits before us were flied  within  three         years of that date.  Therefore, I fail to see how the  suits         before us could possibly be held to be barred by Limitation.             We  must  not forget that Article 2 of Schedule  to  the         Punjab  Limitation (Customs) Act 1 of 1920, lays  down  that         limitation  for a suit for possession, which applies to  the         case before us, commenced from "the date on which the  right         to sue accrues" and not from the date of death of the holder         of  property.   The term "fight to sue" must,  I  think,  be         equated with "cause of action", unless the context indicates         otherwise.  The choice of words used must be presumed to  be         deliberate.  I do not think that we can substitute "the date         of death" for the date of accrual of "the right to sue’.  In         the  Limitation  Act,   as well as in  other  statutes,  the         accrual when intended to be tied to  the date of some event,         is specified as the date of that event.  Here, it is not so.         We  cannot, without an obvious inconsistency with our  find-         ings  that the causes of action in the previous  and  subse-         quent  limitations  were different, hold that  the  date  of         accrual  in both sets of suits is one and the same, that  is         to  say,  the actual date of death.   Such a view  could,  I         think,  be contrary also to the plaintiffs’  pleading  where         the  difference in the causes of action must be found.   The         solution  to the difficulty before us emerges  automatically         if we answer two questions correctly:  What was the  differ-         ence between the two causes of action ?  What is the  effect         of  that difference upon the date of accrual of  the  subse-         quent and different cause of action ?

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           It is well established that it is not in every suit  for         possession that the commencement of date dispossession  must         be  established by the plaintiff.  It is only in a suit  for         possession, based on the allegation by the plaintiff of  his         own  dispossession,  that  the burden has been  held  to  be         governed by Article 142 of the repealed Limitation Act  (See         Ram Gharib v. Bindhiyachal(1), and the plaintiff is required         to  prove the date of his dispossession  within  limitation.         Its equivalent, the present Article 64 of the Limitation Act         of  1963,  places the position beyond the  region  of  every         conceivable doubt.:                         "64.  For  possession  of     Twelve   years                       The. date of                              immovable                      property                       dispossession.                              based on previous                              possession and not                              on title, when the                              plaintiff while in                              possession of the                              property has been                              dispossessed.                       (1) A.I.R. 1934 All. (ST.) 993.                       275                                       Objects and Reasons                       Articles 142 and 144 of the existing Act  have                       given  rise to a good deal  of confusion  with                       respect  to suits for possession by owners  of                       property. Article 64 as proposed replaces Art.                       142,  but  is  restricted to  suits  based  on                       possessory title so that an owner of  property                       does  not  lose  his right  to  the   property                       unless the defendant in possession is able  to                       prove  adverse posesssion".  (See: Chitaley  &                       Rao--the Limitatian Act 1903--Vo1. II).            There is no suggestion whatsoever in the suits before  us         that the plaintiffs were ever in possession so that no ques-         tion of their dispossession could possibly arise.  It was  a         pure  and simple suit for possession on the basis  of  title         against  which the defendants had not even  alleged  adverse         possession.  Hence, there was, it seems to me, no room  here         for  bringing in the actual date of  death,  constructively,         as  the date of some presumed dispossession or adverse  pos-         session  which has not been asserted anywhere.   As  pointed         out  earlier, the defendants seem to have  cleverly  drafted         theft pleadings so that a Division Bench of the High  Court,         which  had erroneously allowed the defendants’ appeals,  had         been  misled  into  placing a burden  upon   the  plaintiffs         which,  according to law, as I see it, could not rest  there         at all.  The Division Bench applied decisions on Section  14         of  the  Limitation Act when this provision  could  not,  as         explained below, be invoked at all.                    The plain and simple question which arose on  the         pleadings  was whether seven years had elapsed since  Kishan         Singh  was last heard of by those who would, in the  natural         course  of  events, have heard from or about him if  he  was         alive, and if so, did this happen within three years  before         the  filing of the suits ? The plaintiffs have asserted  and         proved that this period of seven years had elapsed.  Accord-         ing   to  them, their cause of action matured  within  three         years  of their suits. Even if, by some stretch of  imagina-         tion,  the concept of adverse possession of  the  defendants         were to be introduced in this litigation,  when neither  the         plaintiffs  nor the defendants have pleaded it, it is  abun-         dantly clear that the legal position is that the  possession

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       of  defendants  could not conceivably be adverse  to  Kishan         Singh’s  reversioners  even  before Kishan  Singh  could  be         presumed to be dead.  Indeed, the defendants had  themselves         set  up the plea that he must be still deemed to  be  alive.         On these pleadings, the plaintiff could only be required  to         prove Kishan Singh’s death but not the date of his death  or         the  date of the plaintiff’s dispossession which  can  occur         only after a previous possession of the plaintiffs  followed         by  the adverse possession of the defendants. Neither  cases         dealing  with  recovery  of possession  on  the  plaintiff’s         allegation of his own dispossession nor those where proof of         date  of death was a necessary part of either the  cause  of         action  or the plaintiff’s statutory duty, for showing  that         the  suit was within time, are really applicable  here.   We         have  a  simple case before us  where the  cause  of  action         seems to me to have clearly been shown to have arisen within         three years before the filing of the suits.   Nevertheless,I         will  deal here with some authorities which are relied  upon         by my learned brother Jaswant Singh.         The first of these is: Nepean v. Deo D. Knight(1).  Inthis         case, an action for ejectment was brought, apparently on  an         allegation          (1) English Reports 150 Exchequer p. 1021.         276         of dispossession of the plaintiff by the defendants.  It was         pointed out here that the terms of a statute, applicable  in         the  case,  having done away with the doctrine  of  "adverse         possession", except in certain cases specially provided for,         the question of adverse possession was unimportant.  It was,         however, held that there was a statutory duty cast upon  the         plaintiff  to  bring  his suit within twenty  years  of  the         accrual  of the right of entry.  The date of  this  accrual,         therefore,  became essential to prove as a  statutory  duty.         On the terms of statutory provisions to be construed and the         facts  of  the particular case, Denman C. J. said:   (at  p.         1029):                             "It  is  true the law  presumes  that  a                       person  shewn  to  be alive at  a  given  time                       remains  alive until the  contrary  be  shewn,                       for which reason the onus of shewing the death                       of                       Matthew Knight lay in this case on the  lessor                       of  the plaintiff.  He has shewn the death  by                       proving the absence of Matthew Knight, and his                       not  having  been heard of  for  seven  years,                       whence  arises,  at  the end  of  those  seven                       years,  another  presumption of  law,  namely,                       that  he  is not then alive; but the  onus  is                       also  cast on the lessor of the  plaintiff  of                       shewing  that  he  has  commenced  his  action                       within  twenty years after his right of  entry                       accrued,  that is, after the actual  death  of                       Matthew Knight".         This was really a case in which it was not enough to  invoke         the  presumption  of  death, but, the right  to  sue  itself         depended on commencing the suit within 20 years of the  date         of  accrual of the right to entry which was held to  be  the         actual  date of death of Matthew Knight who had  disappeared         In the case before us, I think that the accrual of the right         to  sue arises only seven years after Kishan Singh was  last         heard  of.  If Nepean’s case (supra) could or did  lay  down         anything  applicable  to the cases before us, I  am  unable,         with  great  respect, to accept it as correct law  which  we         could  follow.   In  my opinion, the facts as  well  as  the         applicable provisions of law in the case before us are  very

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       different  from those in Nepean’s case (supra) which  could,         in any event, not be more than an authority of some  persua-         sive value in this Court.             In  Jaswant  livanrao Deshpande  v.  Ramchandra  Narayan         Joshi,(1) in a suit governed by Article 141 Limitation  Act,         it was held (at p. 301):                           "Art.  141 Lira. Act, is merely an  exten-                       sion of Art. 140,                       with  special reference to persons  succeeding                       to  an estate as reversioners upon the  cessa-                       tion of the peculiar estate of a Hindu  widow.                       But  the plaintiff’s case under  each  article                       rests  upon the same principle.  The  doctrine                       of  non-adverse possession does not obtain  in                       regard  to such suits and the plaintiff  suing                       in ejectment must prove, whether it be that he                       sues as a remainderman in the English sense or                       as  a reversioner in the Hindu sense, that  he                       sues within 12 years of the                       (1) A.I.R. 1916 Bom. 300 @                       277                       estate failing into possession, and that  onus                       is in no way removed by any presumption  which                       can  be  drawn according to the  terms  of  S.                       108,Evidence  Act.   The exact point  for  the                       purpose of Art. 140, and also, in our opinion,                       of  Art. 141, has been decided many years  ago                       in  England  soon  after the  passing  of  the                       English  Law  of  Limitation  regarding   Real                       Property  in  Nepean  v. Deod. Knight (1973) 2                       M & W 894-7 L.J. Ex. 335".             It is evident that here the cause of action laid down by         the  statute itself arises from actual date of death.   This         case, like the previous one, turns on the special meaning of         the statutory provisions prescribing a person’s actual death         as the point of time from which the period of limitation  is         to commence.  In the cases before us the statute  explicitly         makes  a different provision.  We are not concerned  at  all         here  with anything more than an accrual of a right  to  sue         which  must be shewn to arise within the prescribed  period.         No  question  of any accrual of a right of re-entry  or  one         arising  from adverse possession or the date on  which  such         rights could conceivably arise is before us at all.             In Lal Chand Marwari v. Mahant Ramrup Gir & Anr. (1) the         suit seems to have been based on an allegation by the plain-         tiff of his own dispossession by the defendant.  Hence,  it.         was  governed by Article 142 of the former  Limitation  Act,         the equivalent of which  is Article 64 of the Limitation Act         of 1963.  It seems to me that Article 144 of the old Limita-         tion Act is mentioned by mistake in the body of the judgment         here.  In any event, the statement of facts showed that  the         plaintiff  had pleaded his own dispossession, or, at  least,         the plaint could be so construed as to imply that.  Hence, a         case of this. type is distinguishable.             In Jiwan Singh v. Kaur Reoti Singh & Anr,(2) a decree in         a  previous  suit  brought against a person  alleged  to  be         insane as well as not heard of for more than seven years had         been assailed  on  several grounds: that, the defendant  was         insane;  that,  the  defendant  was unheard of for more than         seven  years, and, therefore, should have been deemed to  be         dead;  that, the decree was obtained by fraud. As  the  High         Court  upheld  the  plea of fraud, it did  not  consider  it         necessary  to  decide on other  grounds.   Nevertheless,  it         pointed  out,  quite correctly, that the  presumption  under         Section  108 of the Evidence Act only enables the  Court  to

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       presume  the factum of death but not the date of death.   No         question of limitation arose at all in this case.             In  Kottapalli  Venkateswarlu v.  Kottapalli’  Bapaya  &         Ors,(3)  reliance  was  placed, Inter  alia,  on  Punjab  v.         Natha,(4)   which,  in  my  opinion,  was  wrongly  decided.         Venkateswarlu’s  case (supra), however.  arose on facts  and         circumstances in which the proof of date of death was neces-         sary to determine as the question was whether a legatee had         (1) A.I.R. 1926 P.C. 9.     (2) A.I.R. 1930 All. 427.         (3) A.I.R. 1957 AP. 380.    (4) A.I.R. 1931 Lah. 582 (F.B.).         278         survived  the  testator.  In such a case, proof of  date  of         death is necessarily a part of the cause of action.             In Ram Kali & Ors. v. Narain Singh,(1) it was held that:         (at s. 299-300):                             "Before  the  plaintiff can  succeed  in                       approving himself to be the nearest reversion-                       ary  heir,  he  must prove  in  sequence  that                       Harpal Singh and after him Pahalwan Singh  and                       after him Sheo Ghulam Singh and after him Kali                       Singh predeceased Ram Lal.  The exact date  of                       Ram  Lal’s death  is important from the  point                       of  view  of the success  of  the  plaintiff’s                       case, because it was only then that succession                       opened  out,  and it is only  by  proving  the                       exact date of Ram Lal’s death that the  plain-                       tiff can succeed in establishing his claim  to                       be the nearest reversionary heir of Ram Lal".         This,  in my opinion, is the type of case in which the  date         of  death is an essential part of the plaintiff’s  cause  of         action  so  that the failure to prove it would  involve  the         failure  of the plaintiff’s suit.  Incidentally, it  may  be         observed  that  this also seemed to be a case in  which  the         plaintiff appears to have come to the Court with a suit  for         possession  on  the  allegation of  his  own  dispossession.         Hence,  it became necessary for the plaintiff to  prove  the         date of commencement of the defendant’s adverse interest. It         seems  to  me that wherever the accrual of a right  or  com-         mencement  of  a period of limitation, within which  a  suit         must  be  shewn by the plaintiff to have been  brought,  can         only be established by proving the date of a person’s  death         that  duty must be discharged by the plaintiff or  the  suit         will  fail.  But, to carry the doctrine beyond that  and  to         lay  down that the date of death must invariably  be  proved         whenever the question of limitation is raised in such  cases         must  result  in stultifying or defeating legal  rights  and         wiping  out  the  effects of a  statutory  presumption.   An         accrual of a cause of action based on untraceability of  the         owner  cannot  be said to depend at all on proof  of  either         actual  death or the date of the actual death of the  owner.         It  accrues as soon as death can be presumed and not  a  day         earlier.             I  may point out that the rule laid down in  re  Phene’s         Trusts(2),  which has been repeatedly followed by the  Privy         Council  and  by  our. High Courts, was  enunciated  in  the         circumstances of a case in which it was absolutely essential         for the success of the claim before the Court that a legatee         claimant must be shown to have survived a testator.  It  was         a  case in which there was a competition  between  claimants         which  could only be resolved by a decision of the  question         as to who died first.  It is in such circumstances that  the         onus  of proving the date of death also would  properly  and         squarely  lie  upon the  plaintiff  claimant.   The  general         principles were thus enunciated in this    case(at p. 144):                       "First:   That the law presumes a  person  who

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                     has  not been heard of for seven years  to  be                       dead, but in the absence                         (1) A.I.R. 1934 Oudh 298 @ 289,300.                         (2) 5 Chancery Appeal cases p. 139 @ 144.                       279                       of special circumstances draws no  presumption                       from that fact as to the particular period  at                       which he died.  Secondly: That a person  alive                       at  a certain period of time is, according  to                       the  ordinary presumption of law, to  be  pre-                       sumed  to  be alive at the expiration  of  any                       reasonable  period afterwards.  And,  thirdly:                       That the onus of proving  death at any partic-                       ular  period within the seven years lies  with                       the  party alleging death at  such  particular                       period".             It is neither a part of the case of any plaintiff before         us  nor necessary for the success of his case to prove  that         Kishan Singh died on a particular date or that. Kishan Singh         died  before or after somebody else.  I, therefore, fail  to         see,  with great respect, how the plaintiffs can be  saddled         with the responsibility to prove this date in the suits  now         before us.  It was nobody’s case that Kishan Singh died long         ago  and that the defendants have been in open  hostile  ad-         verse possession against Kishan Singh and whoever may be his         heirs  or  feversioners.  In the  earliest  litigation,  the         defendants  claimed as transferees of the rights  of  Kishan         Singh.   The declaratory decree restricted their  rights  to         the  life  time  of Kishan Singh.  Their  rights  could  not         extend  beyond the point of time when Kishan Singh  must  be         presumed  to be dead.  That is the farthest limit  of  their         rights.  They knew this after the litigation which terminat-         ed in 1902.  That is why, in the suit’s now before us,  they         took up the alternative case, though rather obliquely,  that         Kishan Singh must be or at least deemed to be alive, so that         they  may  benefit from the declaration in 1902  that  their         rights were limited to the life-time of Kishan Singh.             If,  even after litigating for such a long  period,  the         plaintiffs  are  still to be denied their rights  to  Kishan         Singh’s  property, to which they were declared  entitled  to         succeed, they would be really deprived of the benefit of the         presumption  under  section 108 of the Evidence Act  on  the         ground that they could not prove the date of his death  when         they  have  been  asserting  repeatedly that  the  basis  of         their  present  claim is that although the  actual  date  of         death of Kishan Singh cannot be proved, yet, he has not been         heard  of  for seven years and that they had to  wait  seven         years  more for this claim to mature. That it could and  did         mature  in 1952 follows logically from the judgment  of  the         High  Court  in 1951 which is binding  inter  partes.    The         plaintiffs are, in my opinion, on the actual basis of  their         claims,  entitled  to succeed.  That  basis  having  emerged         within  three  years before the filing of the  suits,  their         suits could not possibly be barred by time.  If the right to         sue had not been proved to have accrued at all, due to  want         of  proof of date of death of Kishan Singh, the suits  could         perhaps,  more  logically be held to be still  premature  or         infructuous. But, I fail to see how, even on such a view, we         could  hold  them  to be barred by time.  If  the  cause  of         action itself does not arise no question of the  extinguish-         ment by the law of limitation could emerge.             If, for some reason, we could still hold that the plain-         tiffs’ claims were made beyond the period of Limitation.   I         think  that this would be a fit case in which Section  14(1)         of the Limitation Act could

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       280         come to the aid of the plaintiffs provided there was identi-         ty  of issues to be tried.  The previous suits did not  fail         for want of jurisdiction. Nevertheless, the provision has to         be  liberally construed as this Court has to be a period  of         time, shown to-have elapsed since the expiry of the  present         suits  was  certainly due to the fact that  no  Court  could         decree  the claim before the cause of action matured.   This         was, certainly beyond the control of the plaintiffs.  There-         fore,  a cause of "like nature" to a defect of  jurisdiction         seems to me  to be  there. Indeed, it could be urged that it         is  a stronger ground in equity than a lack of  jurisdiction         which can be foreseen with sufficient deligence..  It is far         more difficult to predict the outcome of  a suit depending         largely  on oral evidence.  The defect revealed by the  evi-         dence  in he earlier litigation was that the suits  did  not         lie at all as they were "premature".  This was, in my  opin-         ion, a defect reasonably comparable to want of jurisdiction.             I,  however, find it very difficult to attempt to  apply         Section   14 Limitation Act to the cases before us  for  two         reasons.   Firstly, there has to be a period of time,  shown         to  have elapsed since the expiry of the period  of  limita-         tion, which could be excluded under section 14. If the cause         of  action does not accrue at all there is no point of  time         from which any period of limitation could run.  Hence, if no         cause  of  action could accrue at all unless and  until  the         date  of actual death of Kishan Singh is established,  there         could be no commencement of a period of limitation.  If that         be the correct position, where is the question of  excluding         any  time  in computing it ?  The only possible  point  from         which  limitation could start running here is the  date   on         which  seven  years expired from the date  on  which  Kishan         Singh was last heard of.  This was within three years before         filing of the suits as pointed out above.  Secondly, Section         14  provides that the time to be excluded spent in  proceed-         ings  prosecuted  in  good faith must relate  to  "the  same         matter"  as is "in issue" in the subsequent proceeding.   It         seems  to  me that the issue in the earlier  litigation  was         whether  Kishan Singh was actually shown to have died  on  a         particular  date.  This was quite different from  the  issue         decided in the cases now before us.  This is whether  Kishan         Singh’s   whereabouts  had remained unknown for seven  years         so that he could be presumed to be dead.  I, therefore, rest         my judgment solely on the ground that, the causes of  action         in the previous litigation and the litigation now before  us         being  different, and the subsequent cause of action  having         arisen  within  three years before the filing of  the  suits         before us, the suits were not barred by limitation.         The Division Bench of the Punjab High Court had proceeded on         the  obviously erroneous assumption that the learned  Single         Judge had decided the appeals only by giving the  appellants         the benefit of Section 14, sub. s (1) of the Limitation Act.         It had overlooked completely the very first ground of  deci-         sion  of  the learned Single Judge and  also  the  condition         imposed  by the learned Judge on the application of  Section         14 by. using the words: "if found necessary".  The         learned Judge had held:         281                              "Admittedly,. the whereabouts of Kishan                       Singh are still not known and, in my  opinion,                       there  can be no escape from the conclusion on                       these  facts  that the death of  Kishan  Singh                       must  be  presumed under Section  108  of  the                       Indian  Evidence Act as he had not been  heard                       of  for a period of seven years.  The  present

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                     suits  were brought between 21st  of  October,                       1952  and 5th of May, 1953.  The  correct  ap-                       proach  to  reach a solution  of  the  present                       problem  is  to give allowance to  the  plain-                       tiffs,  if  found  necessary.  for  the period                       which  they spent in previous litigation  that                       is to say, from the years 1945 to 1951".             The  Division  Bench  had thus  completely  ignored  the         effect  of  the  finding of a new cause  of  action  arising         within  three  years  before the filing  of  the  plaintiffs         suits.   In my opinion, this finding of the  learned  Single         Judge  was  enough to dispose of these appeals.  And,  as  I         have pointed out above, question of either a time bar or its         removal  by resorting to Section 14(1) Limitation Act postu-         lates that a point of time from which lirai, ration can  run         has  been  ascertained.  As that point, on the  findings  of         every Court, including this Court, could not be the date  of         Kishan  Singh’s death,  which is unknown,  the  suits  could         not  possibly be dismissed on that ground.  They could  con-         ceivably be dismissed on the finding that the date of  death         of Kishan Singh, being an indispensable part of the cause of         action,  the  plaints do not disclose a cause of  action  at         all,  and, therefore, should have been rejected.   But,  the         defendants  have not taken any such plea directly.  Nor  was         this argued on heir behalf.             For  the  reasons given above, I regret to have  to  re-         spectfully differ from the view adopted by my learned broth-         er  Jaswant Singh.  I am unable to accept an  interpretation         of the relevant provision prescribing limitation which would         confine  the accrual  of a cause of action only to cases  of         direct  proof of death, on a particular date.  Such  a  view         implies  that  suits  based on a presumption  of  death  are         devoid  a  cause of action which could support a suit  by  a         reversioner.   I do not think that the provision we have  to         interpret  was meant  to define or restrict a right of  suit         or a cause of action in this fashion at all.  The object  of         a  "statute of repose" is only to extinguish rights  of  the         indolent  but not to demolish the causes of action of  those         who  have  not been shewn lacking in vigilance  in  any  way         whatsoever.             Consequently, I would allow these appeals, set aside the         judgment and decrees of the Division Bench of the High Court         and   restore  those of the learned Single Judge  and  leave         parties to bear their own costs throughout.         P.B.R.                                        Appeals   dis-         missed.         282