R.S.A. No. 1933 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1933 of 1985 Date of decision: 04.05.2010 Ujagar Singh ....Appellant versus Badan Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. H.S. Gill, Sr. Advocate, with Mr. R.K. Dhiman, Advocate, for the appellant. Mr. Vijay Lath, Advocate, for Mr. O.P. Nagpal, Advocate, for the respondents. *** VINOD K. SHARMA, J. This regular second appeal, by the defendant/appellant, is directed against the judgment and decree dated 6.5.1985, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for possession of land measuring 0B-3B-1B (Pukhta), situated at village Dakha, Tehsil and District Ludhiana, was ordered to be decreed. The pleaded case of the plaintiff/respondents was, that Basta Singh father of one of the plaintiffs was the original owner of the suit land. He sold the suit land in favour of Gurbax Singh defendant No.1 vide sale deed dated 1.12.1956. Ajaib Singh (now deceased) challenged the alienation by way of declaratory suit on the ground, that the alienation was without consideration and legal necessity. The suit for R.S.A. No. 1933 of 1985 -2- declaration filed by Ajaib Singh deceased, was decreed vide judgment and decree dated 28.8.1958 and decree for declaration was passed, that the sale shall not affect the reversionary rights of Ajaib Singh. Meanwhile, Ujagar Singh, defendant No.2/appellant filed a pre-emption suit regarding the same very sale against Basta Singh and Gurbax Singh. The suit for pre-emption was also decreed vide judgment and decree dated 25.11.1958. As a consequence of the decree, the suit property was mutated in the name of Ujagar Singh and the possession of the suit land was also transferred in execution of the pre-emption decree. It was pleaded by the plaintiff/respondents, that the original sale deed in favour of Gurbax Singh, defendant No.1, was set aside by the Court of competent jurisdiction being without consideration and legal necessity, as such Gurbax Singh could not pass over better title to Ujagar Singh than what he had himself by virtue of pre-emption decree, with a result that Ujagar Singh, defendant No.2, was also subject to the same restraint and limitation regarding the suit land. It was also the case of the plaintiff/respondents, that according to law, a declaratory decree entails for the benefit of the nearest heir of the vendor and immediately after the death of original vendor, the heir becomes full-fledged owner of the property and is entitled to possession of the same. The case set up was, that as defendant No.2/appellant has failed to hand over the possession of the suit property to the plaintiffs in pursuance to the declaratory decree in their favour, hence the present suit. On notice, defendant No.1 did not contest the suit and was proceeded ex parte. The suit was contested by defendant No.2/appellant by taking preliminary objections, that the plaintiff/respondents have no R.S.A. No. 1933 of 1985 -3- cause of action against the answering defendant, who was bona fide transferee for consideration. The suit was said to be not maintainable. The suit was said to be not properly valued for the purposes of court fee and jurisdiction. On merits, it was admitted that the suit land was alienated vide registered sale deed, but it was without consideration and legal necessity. It was averred, that defendant No.2/appellant was not a party to the declaratory suit and as such was not affected by such decree, if passed. The case set up was, that pre-emption decree passed a valid and legal title on defendant No.2/appellant i.e. pre-emptor/decree-holder, and he was not bound by any decree passed subsequently. It was prayed, that the suit of the plaintiff/respondents be dismissed. In replication, averments made in the plaint were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the suit is bad for mis-joinder of parties? OPD. 2. Whether the suit is not maintainable? OPD 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 4. Whether the plaintiffs are entitled to the possession of the suit land? OPP 5. Whether the defendant No.2 is a bona fide transferee. If so its effect? OPD 6. Relief.” As the onus to prove issue No.1 was on defendant No.1, who was proceeded ex parte, therefore, this issue was decided against defendant No.1 and the suit was held not to be bad for mis-joinder of R.S.A. No. 1933 of 1985 -4- parties. Similarly, issue No.2 was also not pressed The learned trial Court, however, held, that as the suit was filed to enforce the reversionary rights after the death of the vendor, the suit for possession was, therefore, maintainable. On issue No.3, the learned trial Court held that the suit was properly valued for the purpose of court fee and jurisdiction as the dispute was with regard to the agricultural land and court fee equal to thirty times of the land revenue had been affixed. The contention of the defendant/appellant, that now the value of the suit land was Rs.10,000/- (Rupees ten thousand only) to Rs.12,000/- (Rupees twelve thousand only), was not accepted. Issues No.4 and 5 were taken up together and the learned trial Court held, that in view of the oral and documentary evidence, it was proved on record that the declaratory decree in favour of the plaintiff/respondents was passed on 28.8.1958, whereas Ujagar Singh, defendant No.2/appellant got pre-emption decree of the land on 25.11.1958. The learned trial Court, therefore, came to the conclusion, that as the declaratory decree passed earlier was pending at the time of pre-emption decree was passed, the pre-emption decree was hit by principle of lis pendens. The learned trial Court also accepted the contention of the plaintiff/respondents, that the second sale by pre- emption was also to be subject to same limitation, which was applicable to the first sale by way of declaratory decree, as the sale was held to be legal from its inception. The learned trial Court held, that in view of the defect in sale, defendant No.2/appellant could not get a title better than R.S.A. No. 1933 of 1985 -5- the first vendee. This finding was based on the fact that no one can transfer a better title than the one he himself had. The learned trial Court held, that the pre-emptor stepped into the shoes of the vendee. The learned trial Court distinguished the judgment of the Hon'ble Lahore High Court in Sharif Hussain and others Vs. Nur Shah and others, AIR 1929 Lahore 585, wherein the Hon'ble Lahore High Court was pleased to lay down as under: - “The right of pre-emption is one of substitution and it cannot, therefore, be said that the successful pre- emptors are representatives of or claim under the original vendee. They cannot thus be bound by the decree against that vendee.” The learned trial Court held, that in the present case, the declaratory decree was passed earlier to the pre-emption decree and, therefore, it was immaterial if in the declaratory suit Ajaib Singh had not impleaded Ujagar Singh, defendant No.2/appellant as a party. The learned trial Court held, that the judgment of the Hon'ble Lahore High Court, therefore, would not apply to the facts and circumstances of the present case. The learned trial Court held, that in the present case principle of lis pendens would apply and the claim of defendant No.2/appellant would be hit by principle of lis pendens. The learned trial Court in support of this finding relied upon Explanation to Section 52 of the Transfer of Property Act, under which it is mentioned that lis pendens would include the date of filing of the suit till its final disposal. In support of this, reliance was placed on the judgment of the Hon'ble Supreme Court in Samarandra Nath Sinha and another Vs. Krishna Kumar Nag, AIR 1967 Supreme Court 1440. The learned trial Court R.S.A. No. 1933 of 1985 -6- also held, that doctrine of lis pendens is not based on equitable doctrine and, therefore, plea of bona fide purchaser is not applicable. The learned trial Court decided both these issues in favour of the plaintiffs and held, that they were entitled to possession of the suit land. The suit was accordingly decreed. Defendant No.2/appellant preferred an appeal. The findings of the learned trial Court were affirmed by the learned lower appellate Court. Mr. H.S. Gill, learned senior counsel appearing on behalf of the appellant, contended that this appeal raises the following substantial questions of law: - “Whether the right of reversioners to challenge the alienation under the Punjab Custom (Power to Contest) Act, no longer exists due to repeal of the Act, which made the declaratory decree ineffective?” In support of the substantial question of law, the learned senior counsel for the appellant, contended, that the suit filed by the plaintiff/respondents was barred under the Punjab Custom (Power to Contest) Amendment Act, 1973. The decree of declaration obtained by the plaintiffs under the custom was no more enforceable. Mr. Vijay Lath, learned counsel appearing on behalf of Mr. O.P. Nagpal, Advocate, for the respondents, on the other hand, contended, that the suit filed by the plaintiff/respondents was not to enforce the right under the custom, but to enforce the decree which has attained finality, therefore, the Amendment Act would be of no consequences. R.S.A. No. 1933 of 1985 -7- The contention of the learned counsel appearing on behalf of the respondents, therefore, was that the judgment and decree passed by the learned lower appellate Court deserves to be upheld. On consideration, I find force in the contention raised by the learned senior counsel for the appellant, as the point raised is squarely covered by the Hon'ble Division Bench of this Court in Kamakar Singh and others Vs. Didar Singh and others, RSA No.964 of 1978 decided on 31.3.2010, wherein the Hon'ble Division Bench by placing reliance on the judgment of the Hon'ble Supreme Court in Darshan Singh Vs. Ram Pal Singh and another, AIR 1991 SC 1654, Kesar Singh and others Vs. Sadhu (1996) 7 SCC 711 and Shakuntla Devi Vs. Kamla and others, (2005) 5 SCC 390, was pleased to lay down as under: - “11. In view of Shakuntla Devi, it can safely be held that decree dated 18.4.1944 as affirmed by the Lahore High Court on 4.11.1947 no longer remained binding after 1973 Amendment Act retrospectively taking away right to enforce right under the customary law of recovering possession where alienation was without legal necessity. There being no contrary view except observation in referring order in Surain Singh, the view taken in Shakuntla Devi has to be followed and the finality of decree has to be held to have been taken away by operation of law and suit of the appellants is, thus, not maintainable. They cannot be granted decree for possession even on the basis of earlier decree. The question has, thus, to be answered against the appellants and in favour of the respondents.” In view of the authoritative pronouncement by the Hon'ble Division Bench of this Court, the substantial question of law is answered R.S.A. No. 1933 of 1985 -8- in favour of the appellant. Consequently, this appeal is allowed and the suit filed by the plaintiff/respondents for possession of the land measuring 0B-3B-1B (Pukhta), situated at village Dakha, Tehsil and District Ludhiana, is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge May 04, 2010 R.S.