IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.964 of 1978 (O&M) Date of decision: 31 .3.2010 Kamakar Singh and others -----Appellants Vs. Didar Singh and others -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. J.K.Sibal, Sr.Advocate with Mr. Sapan Dhir, Advocate for the appellants. Ms. Ritu Bahri, DAG, Haryana for the State. --- Adarsh Kumar Goel,J. 1. This appeal has been placed before this bench in pursuance of order of learned Single Judge dated 14.8.1987. Order of reference is as under:- “This is plaintiffs’ second appeal, whose suit for possession was decreed by the trial court but was dismissed in appeal. The plaintiffs filed the suit for possession by redemption on payment of Rs.4500/- in respect of 2203/4777 share out of the land measuring 374 kanals 9 marlas on the allegations that Naranjan Singh son of Inder Singh, who was R.S.A. No.964 of 1978 (O&M) previously resident of West Pakistan, was father of the plaintiffs Nos. 1 to 6 and husband of plaintiff No.7. He was owner in possession of the land measuring 220 kanals 6 marlas comprising rectangle No.63/4 Killa Nos. 1 to 25 situated in Singpura Chak No.28, G.B.Tehsil Jaranwala, District Layallpur as per the entries contained in the record of rights for the year 1938-39. Naranjan Singh mortgaged half share of the land with Wasava Singh, father of Rattan Singh, defendant No.17 and thereafter sold the entire said land to Dalip Singh father of defendant Nos. 1 to 3 and Shiv Dayal Singh father of defendant Nos. 4 to 6 and father in law of defendant No.7 and grand father of defendant Nos. 8 to 10. The said sale and mortgage were challenged by filing a declaratory suit under custom on the ground that the said sale and mortgage were without legal necessity and the land was ancestral qua them. The said suit was decreed by the trial court on 18th April 1944. The said decree was maintained upto the High Court of Lahore vide copy Exhibit P.1 dated 4th November 1947. Dalip Singh had also land measuring 257 kanals 8 marlas other than the land purchased by him from Naranjan Singh. 2 R.S.A. No.964 of 1978 (O&M) In lieu of the total land left behind by Dalip Singh, suit land was allotted to him vide Sanads Exhibits P.11 to P.14. Naranjan Singh vendor died on 14th April 1969. Thus the plaintiffs filed the present suit within three years thereof i.e. on 25th February, 1972 on the basis of the declaratory decree obtained by them which was confirmed upto the High Court vide copy Exhibit P.1. Certain other persons to whom the land was sold by defendant Nos. 1 to 3 were also impleaded as defendants in the suit. Devinder Singh defendant filed his own written statement and pleaded that Dalip Singh died in Pakistan and his sons inherited the land held by him in Pakistan. He further stated that after the partition of India, defendant Nos. 1 to 3 and Shiv Dayal Singh were given land in lieu of the land possessed by Dalip Singh. However, he denied the knowledge about the remaining averments made in the plaint. Defendant Nos.2,3,8 to 13 and 16 to 22 filed separate written statement and pleaded that they had never seen Naranjan Singh and have no knowledge about the land held by him in Pakistan and further that Naranjan Singh never mortgaged the land with Basawa Singh father of Rattan 3 R.S.A. No.964 of 1978 (O&M) Singh, defendant No.17. They also pleaded that if the alleged decree is proved it was illegal and not binding on them. It was also contended that the final judgment copy Exhibit P.1 dated 4th November, 1947 being judgment of a foreign court was not enforceable and valid in India. They also pleaded that defendant Nos. 1 to 10 had sold or mortgaged the land in dispute to defendant Nos. 11 to 28 through different sale deeds and they were not bound by the decree obtained by the plaintiffs as they are bonafide purchasers for consideration without notice. The trial court found that the suit land had been allotted in lieu of the land contained in the declaratory decree passed on 18th April 1944 by Sub Judge Ist Class, Layallpur, in favour of the plaintiffs. It was further held that it could not be said that the said decree had been passed by a foreign court. The suit was held to be within time from the date of death of Naranjan Singh on 14th April, 1969, the suit having been filed on 25th February 1972. The plea of the defendants that they were bonafide purchasers for consideration, was negatived. In view of these findings, plaintiffs’ suit was decreed for possession by redemption of 4 R.S.A. No.964 of 1978 (O&M) 2203/477 share out of land measuring 374 kanals 9 marlas as detained in the plaint. In appeal the learned Additional District Judge reversed the said findings of the trial court and came to the conclusion that the suit land had not been allotted in lieu of the land which was subject matter of the declaratory decree passed on 18th February 1984 by Sub Judge Ist Class, Layallpur, in favour of the plaintiffs. However, it was confirmed that the said decree could not be considered to be a judgment passed by a foreign court. The finding of the trial court that the suit was within time was also confirmed. However on the question of bonafide purchasers, the lower appellate court found that the vendees had taken necessary steps for ascertaining themselves about the title of the vendor and had examined the record of rights. It thus stands to reason that they had done so much which could be reasonably expected of them. The vendors were recorded as owners in the record of rights and they were in possession of the land sold and, therefore, it was held that defendant Nos.11 to 28 were bonafide purchasers for consideration. Under Issue No.6 which was never pressed before the 5 R.S.A. No.964 of 1978 (O&M) trial court the lower appellate court found that the suit was bad for non joinder of the necessary parties. In view of these findings, the plaintiffs’ suit was dismissed. The learned counsel for the plaintiff-appellants submitted that the lower appellate court has acted illegally and against the record in reversing the findings of the trial court under Issue No.1. According to the learned counsel, Naranjan Singh sold his entire land to Dalip Singh etc., including the land which he had mortgaged with Wasava Singh. Thus argued the learned counsel that the lower appellate court has erred in observing, “in the allotment sanads Exhibits P.11 to P.14 sold Khasra numbers have been given but the plaintiffs have led no evidence to connect the land covered by the said judgment Exhibit P.1 with the land covered by the said allotment sanads Exhibit P.11 to P.14”. According to the learned counsel, this position was admitted by the defendants before the trial court and, therefore, these observations are without any basis. Moreover, according to the learned counsel, the plaintiffs are claiming share out of the total land allotted to Dalip Singh etc., in lieu of the land left by them in Pakistan. That 6 R.S.A. No.964 of 1978 (O&M) share has been determined on the basis of the land for which the declaratory decree was passed in favour of the plaintiffs. The whole approach of the lower appellate court in this behalf is illegal and misconceived. It was also contended that the provisions of section 41 of the Transfer of Property Act were not attracted as the sons of Dalip Singh vendee sold the suit land knowing that they were not the owners as such. Moreover, the vendees never cared to look into the entries made in the sanads Exhibit P.11 to P.14 wherein it was recorded:- “Malkiat Kamal Bai Rehan.” According to the learned counsel, on the facts and circumstances of the case, the vendees could not be held to be bonafide purchasers for consideration without notice. The findings of the trial court in this behalf have been reversed arbitrary and on surmises and conjectures. On the other hand, the learned counsel for the respondents submitted that the copy of the judgment (Exhibit P.1) of the Lahore High Court was inadmissible being the judgment of the foreign court in view of the provisions of section 13, Civil Procedure Code, as it was never passed on merits. There the appeal was 7 R.S.A. No.964 of 1978 (O&M) dismissed as no one appeared on behalf of the appellants. In support of this contention he has referred to Domanion of India v. Messrs Khurana Bros.,AIR 1951 Simla 254. He next contended that the original mortgage was of the year 1938 and, therefore, the suit was barred by time. According to the learned counsel, the findings of the lower appellate court are binding on this court in second appeal. It has been rightly held that the vendees are bonafide purchasers without notice and that the plaintiffs have failed to prove that the suit land was the same which was allotted in lieu of the land which was sold to Dalip Singh in Pakistan. In support of this contention he referred to Shamsher Chand v. Bakhshi Mehr Chand and others, AIR 1947 Lahore 147, Raghu Nath v. Mansa and another, 1962 PLR 230, Ashrafi Devi v. Tirlok Chand and others AIR 1965 Punjab 140 and Kali Ram and others v. Union of India and others, 1976 PLR 475, whereas learned counsel for the appellants cited Shamsher Chand v. Bakshi Mehar Chand, AIR 1947 Lahore 147, Shankar v. Daooji Misir, AIR 1931 PC 118, Md. 8 R.S.A. No.964 of 1978 (O&M) Shafiqullah Khan v. Md. Samiullah Khan, AIR 1929 Allahabad 943 and Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553. One of the questions to be decided in this appeal is as to whether the judgment (Copy ex.P1) delivered by the Lahore High Court after the partition of the country on 15th August, 1947, can be said to be a judgment by a foreign court or not, and, secondly, whether the decrees passed by the courts now in Pakistan can be executed in India after the partition of the country, or whether the decrees passed there with respect to the lands situate in Pakistan can be enforced in India against the lands allotted in lieu of the lands left in Pakistan. According to the learned counsel for the appellants, the decrees of the Lahore High Court or those passed earlier by the subordinate courts which merged with the decree of the Lahore High Court could not be said to be the judgments by a foreign court. In support of this contention he relied on clause 13 of the High Courts (Punjab) Order, 1947, which was made in exercise of the powers conferred by section 9 of the Indian Independence Act, 1947. He also referred to Hans Raj Gupta and Co. Delhi v. 9 R.S.A. No.964 of 1978 (O&M) Commissioner of Income Tax, AIR 1950 (East) Punjab 364 and Bashir Ahmad v. The Crown, AIR 1951 Punjab 57 (FB). On the other hand, learned counsel for the defendants submitted that the decree passed by the Lahore High Court after the partition of the country was a judgment of a foreign court and the same being not on merits was not conclusive in view of the provisions of section 13 of the Code of Civil Procedure. Moreover, argued the learned counsel, the decree being not a money decree could not be executed in this part of the country after the partition. In support of his contention he referred to S.S.Said-ul-Hamid R.E.Mohamed Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Madras 265 (FB), A.N.Abdul Rahman v. J.M.Mohamed Ali Rowther AIR 1928 Rangoon 319, Isidore Fernando v. Thommai Antoni Michael Fernando AIR 1933 Madras 544, RMV Vellachi Achi v. R.M.A.Ramanathan Chettiar, AIR 1973 Madras 141, KM Abdul Jabber v. Indo- Singapore Traders P.Limited, AIR 1981 Madras 118 and Lalji Raja and Sons v.Firm Hansraj Nathuram, AIR 1971 SC 10 R.S.A. No.964 of 1978 (O&M) 974. Since the matter is of importance, I think it proper in the circumstances of the case that the appeal be decided by a larger bench. It is, therefore, directed that the papers be laid before the Hon’ble Chief Justice for constituting a larger bench.” 2. Even though, question referred by learned Single Judge for opinion is whether judgment of Lahore High Court after partition of the country could be held to be judgment of a foreign court, which could not be treated to be conclusive for its applicability in India in view of Section 13 CPC, learned counsel for the respondent- defendants made a statement that the impugned decree of the learned appellate court could be sustained on the sole ground that the suit of the appellant-plaintiffs was barred under the Punjab Custom (Power to Contest) Amendment Act, 1973 and in view of this contention, no other question need to be gone into. Accordingly, learned counsel for the parties argued the question of bar to the maintainability of suit on this ground. 11 R.S.A. No.964 of 1978 (O&M) 3. Even though the facts have been noticed in the reference order, we may make a very brief reference to the facts necessary for considering the relevant question. 4. The predecessor of the appellants sought declaration that alienation of ancestral land without legal necessity by way of mortgage and sale in favour of predecessor of the defendant-respondents did not affect their reversionary rights under the custom. Suit to this effect was decreed on 18.4.1944 and appeal was dismissed by the Lahore High Court on 4.11.1947. The predecessor of the appellants, Naranjan Singh died on 14.4.1969. Present suit for possession was filed on 25.2.1972 on the basis of the said declaratory decree. The trial court decreed the suit but the lower appellate court reversed the decree of the trial court and dismissed the suit, inter-alia, holding that identity of the land was not established. The defendants were bonafide purchasers for consideration. The appellants filed this second appeal in which the respondents have raised the plea of bar under the 1973 Act. The said question is a substantial question of law to be decided in this appeal. 12 R.S.A. No.964 of 1978 (O&M) 5. Learned counsel for the appellants submitted that the Amendment Act, 1973 was of no consequence as the appellants were not claiming right under the custom but right under the decree. 6. On the other hand, learned counsel for the respondents submitted that the decree was for enforcing right under the custom recognized in para 59 of the Rattigan Digest and Customary Law and by Section 7 of the 1973 Amendment Act, right to contest alienation ceased to exist. The Hon’ble Supreme Court in Darshan Singh vs. Ram Pal Singh and another, AIR 1991SC 1654, Kesar Singh and others v. Sadhu, (1996) 7 SCC 711 and Shakuntla Devi v. Kamla and others , (2005) 5 SCC 390 held that enforcement of the said right could be resisted even in execution. 7. Learned counsel for the appellants submitted that the judgments of the Hon’ble Supreme Court in Darshan Singh and Kesar Singh were per incurium, as observed in subsequent order in Surain Singh v. Lakhmira Singh, (2001) 9 SCC 250, referring the matter to larger Bench. Finality of earlier decree was not affected by the 13 R.S.A. No.964 of 1978 (O&M) amendment as laid down in Teg Singh v. Charan Singh, (1977) 2 SCC 732 and several judgments of this Court including Ajmer Singh (dead) through LRs v. Chanan Singh and others, (2005) 1 RCR (Civil) 33, Gurdial Singh etc. v. Piara Singh etc., 1973 RLR 613, Paras Ram v. Kehar Singh, 1973 RLR 689, Chand Singh v. Shrimati Ind Kaur and others, 1974 PLR 226 and Charan Singh v. Gehl Singh and another, 1974 PLR 125. Thus, suit of the appellants for possession on the basis of a declaratory decree that their reversionary right under the custom will not be affected, could be decreed notwithstanding the bar contained in provisions of 1973 Amendment Act. 8. There is no dispute that original cause of action of the appellants is based on general custom against alienation of immovable property except for necessity or consent of the male descendants/collaterals. The said custom was enforceable under Section 5 of the Punjab Laws Act, 1872 read with Punjab Custom (Power to Contest) Act, 1920. Previous declaratory decree is based on the said cause of action. By Ordinance No.2 of 1973 which 14 R.S.A. No.964 of 1978 (O&M) was replaced by Act 11 of 1973, enforcement of the said right was abrogated and thereafter no decree for enforcing the said right could be passed. Interpreting the said provision, a bench of three Hon’ble Judges of the Hon’ble Supreme Court held in Darshan Singh that the effect of amendment was to take away even vested rights. It was observed:- “37. We are also of the view that while providing that "no person shall contest any alienation of immovable property whether ancestral or non-ancestral or any appointment of an heir to such property", without preserving any right to contest such alienations or appointments as were made after the coming into force of the Principal Act and before the coming into force of the Amendment Act, the intention of the legislature was to cut off even the vested right; and that it was so by implication as well. There is no dispute as to the proposition that retrospective effect is not to be given to an Act unless the legislature made it so by express words or necessary implication. But in the instant case it appears that this was the intention of the Legislature. 15 R.S.A. No.964 of 1978 (O&M) Similarly Courts will construe a provision as conferring power to act retroactively when clear words are used. We find both the intention and language of the Amendment Act clear in these respects.” 9. Following the above judgment, it was observed in Kesar Singh:- “5. In view of the above position, the view of the learned Judge that the appellant is not entitled to raise the executability of the decree in execution is not correct since the Amendment act was applicable at the time of passing the decree by the appellate court and the above decree, therefore, is nullity. When the matter goes to the root of the jurisdiction, it is settled that High Court was not right in rejecting the revision of the appellants stating that they are not entitled to raise the plea of nullity. In this view of settled legal position, it does not serve any purpose to remand the matter to the executing court for fresh orders.” 10. In Surain Singh, doubt was expressed about the correctness of the view taken in Kesar Singh on the ground 16 R.S.A. No.964 of 1978 (O&M) that the question of finality of the decree for declaration was not considered in which case, view taken in Darshan Singh could not apply to decree which had become final. The matter was referred to a three member Bench. In Shakuntla Devi v. Kamla and others, (2005) 5 SCC 400, in para 10, it was noticed that before the three Judge Bench could give judgment in Surain Singh, appeal was dismissed for non-prosecution and no final adjudication took place in that case. Accordingly, a fresh reference was made to a Bench of three Hon’ble Judges which was decided vide judgment reported as Shakuntla Devi v. Kamla and others (2005) 5 SCC 390. Therein, after referring to other judgments on the point including Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.Jeejeebhoy, (1970) 1 SCC 613, Chief Justice of AP v. LVA Dixitulu, (1979) 2 SCC 34, Ashok Leyland Limited v. State of TN, (2004) 3 SCC 1 and Sonepat Coop.Sugar Mills Limited v. Ajit Singh, (2005) 3 SCC 232, it was held that if law is altered after the earlier decision, earlier decision will not operate as res judicata between the same parties. It was concluded as under:- 17 R.S.A. No.964 of 1978 (O&M) “22. Thus, the law is clear on this point i.e. if a suit is based on an earlier declaratory decree and such decree is contrary to the law prevailing at the time of its consideration as to its legality or is a decree granted by a court which has no jurisdiction to grant such decree, principles of res judicata under Section 11 CPC will not be attracted and it is open to the defendant in such suits to establish that the declaratory decree relied upon by the plaintiff is not based on a good law or court granting such decree did not have the jurisdiction to grant such decree.” 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 18 R.S.A. No.964 of 1978 (O&M) 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. 12. Accordingly, this appeal is dismissed. (Adarsh Kumar Goel) Judge March 31, 2010 (Alok Singh) ‘gs’ Judge 19