TMI Blog1950 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... uperior proprietary khata. Raghuraj Singh denied the plaintiff's title and pleaded adverse possession and the bar of limitation. 3. The trial Court dismissed the suit on 12-4. 1944. On appeal the District Judge held that the plaintiff was an under-proprietor and that adverse possession by the defendant had not been proved but remanded the case for a finding on the question of the plaintiffs possession within limitation. 4. Raghuraj Singh's contention was that the plaintiff had been dispossessed in 1343 F. corresponding to the year 1935-36 when the Oudh Rent Act was still in force and that under Section 108 (10) the period of limitation being one year, the plaintiff had lost his right absolutely to the property before the U. P. Tenancy Act, which provided for an extended period of limitation came into force and as such the plaintiff could not take advantage of the latter Act. 5. The Munsif on remand accepted the defendant's plea. But the lower appellate Court rejected it on the ground that the plaintiff could not have filed the suit in the revenue Court for recovery of possession against the defendant, who was one of the cosharers in the superior proprietary rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit or proceeding in which such decree or order was passed, except in so far as such rights or remedies are inconsistent with the provisions of the said Act as amended by this Act : Provided secondly that the proceedings under Section 53 between a landholder and his tenant and all proceedings under Section 54 shall be quashed : Provided thirdly that appeals and revisions arising out of the proceedings under Section 53 between a landholder and his tenant or out of those under Section 54 shall be so decided as to place the parties in the same position in which they were immediately before the institution of such proceedings : Provided fourthly that all suits, appeals and revisions pending under Section 180 of the said Act, on the date of the commencement of this Act for the ejectment of any person who was recorded as an occupant on or after the first day of January 1938, in a record revised under Chap. IV, U. P. Land Revenue Act, 1901, or corrected by an officer specially appointed for the correction of annual registers in any tract, shall be dismissed, and all decrees and orders for the ejectment of such persons, which have not been satisfied in full on the date of the commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut all these rules are subject to one condition and that is that the Legislature has not shown a contrary intention either in express words or by necessary implication; and, therefore, the only question that has to be decided is whether Section 31, Amending Act, X [10] of 1947, is retrospective in operation so as to affect the period of limitation which governs suits pending at the time of its enactment, whether they are pending in the trial Court or are in the stage of appeals or revisions. 12. I have no doubt that Section 31 has the effect contended for by the defendant-appellant. 13. Now actions pending at the time when a statute is enacted may consist of five classes of cases - (a) Actions which are pending in the trial Court, (b) Actions which have been already decided by the trial Court and an appeal or revision is pending therefrom, (c) Actions which have been already decided but an appeal or revision is filed after the commencement of the Amending Act. (d) Actions which have been already decided but execution has not been carried out in full, (e) Actions which have been already decided and execution has also been carried out in full. 14. Section 31 deals with the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed for the institution of a suit was to be applied by the appellate Court in the decision of the appeal. In support of this argument reliance is placed upon the principle that the function of an appellate Court is merely to see whether the trial Court's order was correct on the date on which it was passed and the subsequent amendment of the law is not to be taken into account by the appellate Court. 17. The argument is fallacious. It is not correct to say that an appellate Court has no power to take into account changes in the law made subsequent to the passing of the trial Court's decree or order. 18. In Lachmeshwar Prasad Shukul v. Keshwar Lal, A. I. R. (28) 1941 F. C. 5 : (191 I. C. 659), the matter was discussed at length and it was ruled that : The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment a suit could be filed even by a tenant under Section 180 of the Act and it was in connection with this that my brother Kidwai observed : An alteration of the law of procedure has immediate effect but it will not have retrospective effect to deprive the decree of a Court which had jurisdiction when the decree was passed, of all effect, i. e., retrospective effect will not be given to a statute amending the law of procedure in such a manner as to affect rights which have already vested in any one by reason of a decree. An appeal is in a sense a continuation of the suit but the function of a Court of appeal is only to see whether the decision of the lower Court is correct and for this purpose it is the law which is applicable when the decree is passed that must be considered. A change in the law will only be considered if it is given retrospective effect or if, by reason of the change, the decree will become infructuous if it is allowed to stand. In the present case retrospective effect has not been given to the amendments made by Act X [10] of 1947 and the decree already passed will not become infructuous, Consequently the decree passed by the lower Courts with jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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