Judgement

Appeal (No. 82 of 1924) from a decree of the High Court (January 15, 1920), which affirmed, so far as is material to the subject-matter of this report, a decree of the Additional Subordinate Judge of Aligarh.

The suit related to immovable properties which, having been sold in execution of decrees, were transferred in 1900 by the certified purchasers to the first respondent Obaid Ullah. Both Courts in India found that Abdul Shakur and Abdul Latif, whose heirs were the appellants, were the true purchasers, and that they and the appellants after them had been in physical possession from shortly after the sales until 1915. In 1909 Abdul Ghafur had executed a deed of wakfnama of all his property, including his share of properties bought at the sales.

The suit was brought by the appellants on August 5, 1916. They prayed by their plaint for a declaration that they were owners in possession of the properties ; alternatively, if it were found that the first respondent was in possession, for an order for possession ; they alleged that they were the true purchasers, also that any right or title which the first respondent had was extinguished by adverse possession. They also alleged that the wakfnama, of which Obaid Ullah had been appointed mutawalli, was inoperative.

The material facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that so far as the suit related to properties transferred by the certified purchasers it was barred by s. 66 of the Code of Civil Procedure, but that the wakfnama had never been brought into operation, and that the plaintiffs were entitled to recover the properties included in it, except those purchased at the auction sale. He decreed accordingly.

On an appeal and cross-objection the High Court dismissed the suit altogether. The learned judges (Mears C.J. and Knox J.) affirmed the view that so far as the suit related to properties transferred by the certified purchaser it was barred by s. 66 of the Code of 1908 ; they rejected a contention that s. 317 of the Code of 1882 and not s. 66 of 1908 applied. With regard to the wakfnama they held that the intention having been to create a genuine dedication, the subsequent conduct of Obaid Ullah did not invalidate it. The judgment is reported at I. L. R. 43 A. 416.

1929. April 16, 18. Dunne K.C. and Wallach for the appellants. The sale and transfer were both before 1909, consequently the Code of Civil Procedure, 1908, s. 66, did not apply, as it is not retrospective in effect Promatha Nath Pal Chowdhuri v. Mohini Pal Chowdhuri. (( 1920) I. L. R. 47 C. 1108.) Sect. 317 of the Act of 1882, which was in operation, did not in terms apply to a suit against a transferee from a certified purchaser. The High Court at Allahabad in Sibta Kunwar v. Bhagoli Joardar (( 1899) I. L. R. 21 A. 196.) rightly held that s. 317 did not so apply by implication ; the High Courts at Calcutta and Madras also have so held, though in Bombay it was held to the contrary. Sect. 66 should not be given a retrospective effect, which takes away a right of action existing when it was passed; that is so even if the section deals with a matter of proce dure Colonial Sugar Refining Co. v. Irving. ([ 1905] A. C. 369.) Further, the plaintiffs pleaded alternatively that they had a title by adverse possession, and it was concurrently found that they were in possession from the date of the sale until 1915. They therefore had a title under the Indian Limitation Act, s. 28, and Sch. I., art. 144, and an alternative cause of action to which s. 66 of the Code did not apply.

De Gruyther K.C. and E. B. Raikes for the first respondent. There is no ground for holding that s. 63 of the Code of 1908 does not apply to every suit brought after that code came into force by a person claiming to have purchased benami. Even if the Code of 1882 applied, the High Court at Bombay rightly held in Hari Govind v. Ramchandra (( 1906) I. L. R. 31 B. 61.) that s. 317 applied to a suit against