TH SEPTEMBER v. Makhan Singh & Ors.

CORAM : HON’BLE MR. JUSTICE L. N. MITTAL * * * * Present : Mr. Vipin Mahajan, Advocate for the appellants. Mr. Vishal Garg, Advocate for respondents No.1 to 3. L. N. MITTAL, J. (ORAL) * * * * Defendants No.1 and 2 have filed this second appeal after they were partly unsuccessful in both the Courts below. Facts in this case are not very much in dispute. Land measuring 10 kanals 8 marlas (wrongly mentioned as suit land measuring 14 manals 6 marlas) was sold by Fauja Singh and his brother Ishar Singh to defendants No.1 and 2 vide sale deed dated 17.07.1939. Plaintiffs are sons of Fauja Singh vendor. Ishar Singh, uncle of the plaintiffs, was issueless and unmarried. Plaintiffs successfully challenged the aforesaid sale deed alleging that the sale was without consideration and legal necessity and plaintiffs being reversioners of the vendors, the sale was not binding on them after the death of the vendors. Suit filed by the plaintiffs in this regard was decreed vide judgment and decree dated 30.08.1946. Accordingly the plaintiffs got right to possession of the suit land after the death of vendors. Ishar Singh died in the year 1966 and thereupon plaintiffs filed suit for RSA NO.3834 OF 2008 - 2 - possession of half share of the suit land being the share of Ishar Singh. The said suit was dismissed as premature on the ground that the other vendor Fauja Singh was still alive and the suit for possession could be filed only after death of Fauja Singh as well. In the instant suit, the plaintiffs alleged that Fauja Singh had also since died on 16.09.1994 and plaintiffs are the only legal heirs of both the vendors. Accordingly plaintiffs claimed possession of the suit land on the strength of earlier decree dated 30.08.1946. Defendants No.3 to 11 are heirs of Swaran Kaur daughter of Fauja Singh i.e. sister of plaintiffs. Only defendants No.1 and 2 contested the suit and controverted the plaint averments. Learned trial Court vide judgment and decree dated 20.12.2000 partly decreed the plaintiffs’ suit for possession of 3/4th share of 8 kanals 17 marlas land out of the suit land. Both parties preferred first appeals which have been dismissed by learned Additional District Judge, Fast Track Court, Gurdaspur vide common judgment and decrees dated 07.08.2008. Feeling aggrieved, defendants No.1 and 2 have filed this second appeal. I have heard learned counsel for the parties and perused the case file. Counsel for the appellants contended that the Punjab Custom (Power to Contest) Act, 1920 (in short, the Custom Act) has since been repealed in its application to the State of Punjab vide the Punjab Custom (Power to Contest) Amendment Act, 1973 (in short, the Amendment Act) and therefore, suit for possession filed in the year 1994 (subsequent to the Amendment Act thereby repealing the Custom Act) could not be decreed RSA NO.3834 OF 2008 - 3 - because the right under the Custom Act stood extinguished by repeal thereof by the Amendment Act. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in the case of Kesar Singh and others versus Sadhu, 1996(2) RRR 1 and unreported Division Bench judgment dated 31.03.2010 of this Court in RSA No.964 of 1978 (O&M) titled Kamakar Singh & others versus Didar Singh & others. On the other hand, counsel for respondents No.1 to 3/plaintiffs relying on judgment of five judges’ Full Bench of this Court in the case of Mihan and another versus Inder and another, 2008(3) RCR (Civil), 124, contended that right under the Custom Act having already crystallized vide decree dated 30.08.1946 has not been taken away retrospectively by the Amendment Act whereby the Custom Act was repealed. I have carefully considered the rival contentions. The issue involved in the instant second appeal relating to effect of Amendment Act has not even been touched upon in the case of Mihan (supra) as this issue was not involved in that case. On the other hand, the issue involved in this second appeal has been directly dealt with and decided in the cases of Kesar Singh (supra) and Kamakar Singh (supra). It has been categorically laid down in these judgments that decree challenging alienation under the Custom Act could not be enforced by suing for possession after the Amendment Act repealed the Custom Act. In the case of Kamakar Singh (supra), the vendor had died even before the Amendment Act came into force and even suit had been filed before the Amendment Act was enforced, but still the suit was held liable to dismissal. Similarly in the case of Kesar Singh (supra), it was observed that during pendency of appeal, customary RSA NO.3834 OF 2008 - 4 - rights were taken away by the Amendment Act and even if the decree was affirmed in appeal, still objection was available in execution to the effect that the decree was nullity. Thus in that case, even execution petition was dismissed although there was decree for possession already passed and affirmed in appeal. In the instant case, the plaintiffs are on worse footing. Fauja Singh vendor has died on 16.09.1994 and suit has been filed on

09.12.1994 i.e. long after the Amendment Act came in to force and the Custom Act stood repealed. Consequently, plaintiffs have no right to seek possession of the suit land in view of repeal of the Custom Act by the Amendment Act. Following substantial question of law arises for adjudication in this second appeal: Whether decree dated 30.08.1946 passed under the Custom Act can be enforced to seek possession of the suit land even after repeal of the Custom Act by the Amendment Act ? In view of the discussion made hereinbefore, the aforesaid substantial question of law is answered in favour of the appellants and against the plaintiffs. As a necessary consequence, the instant second appeal is allowed. Judgments and decrees of both the Courts below are set aside. Suit filed by respondents No.1 to 3/plaintiffs stands dismissed. The parties are left to suffer their respective costs throughout. 17th September, 2012 ‘raj’ (L. N. MITTAL) JUDGE