Amit Rawal J. - The appellant-defendant is aggrieved of the judgment and decree dated 05.08.2013 rendered by the Lower Appellate Court,
whereby, suit at the instance of respondent-plaintiff seeking relief of mandatory and permanent injunction for handing over the possession and
branding the appellant as licensee, has been decreed.
2. Mr. Anil Kshetarpal, learned Senior Counsel assisted by Mr. Karan Singh, Advocate for the appellant-defendant submits that no doubt, at the
time when the suit was filed, the respondent/plaintiff, who is none-else but father, who was alive when suit was instituted by branding the appellant
as licencee, but during the pendency of the appeal, he has died intestate without leaving any Will and therefore, he would have a right to inherit the
suit property being co-owner. He further submits that relationship of licensor and licensee is a personal and did not transferable, therefore, the
respondent cannot seek execution of the decree as cause of action accrued in favour of the respondent-plaintiff (since deceased) ceased to exist.
The subsequent event can be taken into consideration by the Court at any stage, much less, in the present appeal as the appeal is continuous of the
suit.
3. Mr. Sachin Mittal, learned counsel for the respondent-plaintiff submits that the respondent-plaintiff is only seeking execution of the decree
rendered in favour of Sagar Chand (since deceased). The suit would relate back to filing of the suit, much less the cause of action accrued,
therefore, the subsequent event as sought to be projected and urged, would not be available. Once a licencee is always licencee and thus, urges
this Court for affirming the findings under challenge.
4. I have heard learned counsel for the parties and appraised the paper book and of the view that there is little force and merit in the submissions of
Mr. Anil Kshetarpal as per the ratio decidendi culled out by Hon''ble Madras High Court in Chinnan and others v. Ranjithammal 1931 AIR
Madras 216 and also by this Court in Sunder Lal v. Sita Bali 2003(3) RCR (Civil) 243, licence is not transferable. The relationship between
licensor and licencee ceased to exist on the death of licensor, Sagar Chand, who is none else but father of the appellant.
5. It is conceded position on record that Sagar Chand had died intestate. There is no testamentary document. In the absence of the same, all the
legal heirs would have a right to succeed to the share in the equal share. In view of the subsequent event, I am of the view that cause of action
accrued in favour of respondent-plaintiff (since deceased) would not be beneficial for other legal heirs.
6. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio
decidendi culled out by five learned Judges of the Hon''ble Supreme Court in Pankajakshi (dead) through LRs and others v. Chandrika and
others, AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section
41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure so there is
need to frame the substantial questions of law or not. The Constitutional Bench of Hon''ble Supreme Court held that the decision in Kulwant Kaur
and others v. Gurdial Singh Mann (dead) by LRs and others, 2001(4) SCC 262 on applicability of Section 97(1) of CPC is not a correct
law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back.
7. For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon''ble Supreme Court in Pankajakshi ''s case
(supra) reads thus:-
Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have
been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [AIR 1978
P&H 137 : 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled."" [at paras 27 - 29]
27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab
Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into
force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law
in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the
Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued
being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the
Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason
that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it
is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature
or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no
application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.
Therefore, I do not intend to frame the substantial questions of law while deciding the appeal aforementioned.
8. The judgment and decree rendered in the suit cannot be executed, therefore, the judgment and decree of the Lower Appellate Court is not
sustainable and liable to be set aside. However, this will not preclude the parties to seek declaration of ownership with regard to joint or separate
possession or partition by metes and bounds, in accordance with law.
Accordingly, the appeal stands allowed.
