GHULAM HUSSAIN Versus FATIMA BIBI

The facts giving rise to this appeal are brief and simple. The plaintiffs-appellants Ghulam - Hussain and Nazar Hussain brought a suit for possession of land measuring 14 kanals 14 marlas bearing Khasras Nos. 77, 89, 88, 78 and 81 entered in the Jamabandi for the year 1960-61, situate in Mauza Mohal Chhaner, Tehsil and District Sialkot, on pa;ment of Rs. 494.00 against Mst. Fatima Bibi, Mst. Khurshid, Ghulam Hussain and Nazir Ahmad, the defendants-respondents. The foundation of the claim was that Allah Ditta, father of the plaintiffs, sold the suit land to Karam Dad, husband, of defendant No. 1 and father of defendants Nos. 2 to 4. The plaintiffs, who were minors at that time, brought the usual declara tory suit under custom impugning the said alienation by Allah Ditta. The parties entered into a compromise and a compromise decree followed on the 12th of April 1947 in the following terms:

Allah Ditta died four or five years before the institution of the present suit by the plaintiffs for possession of the suit land on payment of Rs. 494.00 as per terms of the compromise decree of 12th April 1947. The defendants resisted the suit on various grounds including the plea of limitation. The pleas were rejected and suit was decreed. The defendants appealed and the learned District Judge while disagreeing with the finding of the trial Court on the issue of limitation has dismissed the suit as time-barred. The plaintiffs have come up to this Court in second appeal.

2. Before me learned counsel for the plaintiffs has reiterated the argu ment advanced before the Courts below that because a compromise decree is nothing more than a superadded command of the Court on the compromise entered into between the parties, the suit brought to enforce the compromise evidence by the compromise declaratory decree is covered by Article 120 of the Limitation Act, the residuary Article, and not by Article 2(b) of the Punjab Limitation (Customs) Act, 1920. He has relied on C. J. Smith v. Kenny A I R 1924 Pat, 231, which authority relies on the dictum (reproduced below) of Sir Lawrence Jenkins, Chief Justice in Kunodhaj Bhukta v. Braja Mohan Bhukta I L R 43 Cal. 217:

"It is well settled that a contract of parties is nonetheless a contract because there is superadded to it the command of the Judge. It is still a contract of the parties."

It is argued that Article 115 of the Limitation Act will not govern the instant suit which is for possession and not for compensation, as envisaged in the said Article, and, therefore, the suit brought within six years on the basis of com promise culminating in the compromise decree should have been entertained as within time.

3. There is no denying the fact that a compromise decree is executable in the same manner as an ordinary decree (see Messrs Amin Cotton Co. Ltd. v. Messrs Muhammad Jamil & Co. P L D 1967 Kar. 795, as the only difference between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court, the second stands unless and until it is discharged on appeal Charles Hubert Kinch v. Edward Kalth Walcott and others A I R 1929 P C 289 refers. How ever, if the compromise decree is declaratory and incapable of execution, a separate suit is necessary to enforce the right created by the decree. Aubho yessury Dabes v. Gouri Sunkur Panday I L R 22 Cal. 859 and Godhumal Surmukhamal v. Mst. Bhambho A I R 1943 Sind 11 are in point. Learned counsel for the defendants has no cavil with the proposition that Article 115 of the Limitation Act is a sweeping Article for all cases of compensation for breach of contract not specially provided for in the Act and in case a suit does not come within the purview of Article 115 the residuary Article 120 may be invoked. It is, however, contended that the distinguishing features of the instant case take it out of the pale of the provisions of the Limitation Act and the special law enacted in the form of the Punjab Limitation (Customs) Act, 1920, applies. Section 29 of the Limitation Act is relied on. It is argued that the previous suit impeach ing the alienation by Allah Ditta under custom had been filed by the plaintiffs while they were minors through their next friend, as representatives of the reversionary body and despite the compromise entered into by the parties the decree shall enure for the benefit of all persons entitled to impeach the alienation, as per section 8 of the Punjab Limitation (Customs) Act, 1920. The argument that because it is a case of compromise decree and the declaration obtained has to be distinguished from the usual declaratory decree under custom is without merit. The compromise and the subsequent com promise decree cannot be considered to be in any manner outside the pur view of the usual declaration under section 7 of the Punjab Limitation (Customs) Act, 1920 as actually it was agreed in the said suit that the vendee was to remain in possession of the suit land during the lifetime of the alienor Allah Ditta and after his death the plaintiffs were held entitled to get posses sion of the land on payment of Rs. 494.00, the amount accepted to have been the consideration with legal necessity for the said alienation. The present suit for possession filed by the plaintiffs as reversioners on the basis of the declaration obtained has necessarily to be governed by the provisions of the Punjab Limitation (Customs) Act, 1920, and the Schedule attached thereto they special law framed for the purpose, and not the provisions of the Limitation Act. The suit having been filed beyond three years of the death of Allah Ditta is hit by the provisions of Article 2(b) of the Schedule to the Punjab Limita tion (Customs) Act, 1920, and has been rightly dismissed by the learned District Judge. The appeal fails and is dismissed. The parties are left to bear their own costs in the circumstances of the case.

K. B. A. Appeal dismissed.