Regular Second Appeal No. 465 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 465 of 2011(O&M) Date of decision : February 07, 2011 Satvir Singh ....Appellant versus Arjan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Surinder Mohan Sharma, Advocate for the appellant L.N. Mittal, J. (Oral) CM No. 1242.C of 2011 Although sufficient ground for condonation of delay of 163 days in refiling the appeal is not made out from the averments made in the application which is accompanied by affidavit, yet adopting liberal approach, the said delay is condoned. The application stands allowed accordingly. CM No. 1243.C of 2011 Allowed as prayed for. RSA No. 465 of 2011 By this common judgment, I am disposing of two regular Regular Second Appeal No. 465 of 2011(O&M) -2- second appeals i.e. RSA No. 465 of 2011 filed by Satvir Singh plaintiff no. 1 and RSA No. 466 of 2011 filed by plaintiffs no. 2 to 5 as both these appeals have arisen out of a single suit. Plaintiffs have remained unsuccessful in both the courts below. Facts of the case are not in dispute. Plaintiffs and Karam Singh proforma defendant no. 19 are heirs of Surjan Singh. Plaintiffs no. 1 and 2 and defendant no. 19 are sons; plaintiffs no. 3 and 4 are daughters and plaintiff no. 5 is widow of Surjan Singh. Surjan Singh was owner of the suit land measuring 86 bighas 10 biswas. He sold the same to Amar Singh etc. Defendants no. 1 to 18 are legal heirs/successors-in-interest/transferees of the said vendees. The said sale was challenged by Sham Singh etc. by filing suit no. 18 of 1955 on the ground that the sale was without consideration and legal necessity and was, therefore, in contravention of the custom applicable to the parties. Plaintiff no. 1 Satvir Singh who was born during the pendency of the said suit was also impleaded as plaintiff in that suit. The said suit was dismissed by the trial court vide judgment and decree dated 27.10.1956. However, first appeal was allowed by Additional District Judge vide judgment and decree dated 20.2.1957. In RSA No. 226 of 1957 preferred by vendees Amar Singh etc. this Court vide judgment and decree dated 27.7.1962 modified the judgment and decree of the lower appellate court and held that the sale would not be binding on the reversioners of the vendors except to the extent of ` 6000/- and after demise of the vendor his next heirs would be entitled to take possession of the suit land on payment of the said amount of ` 6000/-. Plaintiffs filed the instant Regular Second Appeal No. 465 of 2011(O&M) -3- suit alleging that their predecessor Surjan Singh vendor has since died on 20.9.1998 and therefore, the plaintiffs and proforma defendant Karam Singh being his legal heirs are entitled to possession of the suit land on payment of ` 6000/- in view of decree passed in the previous litigation. Accordingly, plaintiffs filed suit for possession of the suit land on payment of ` 6000/- which amount was deposited by the plaintiffs in the Court. Defendants, inter alia, pleaded that sale deeds in favour of some of the defendants by the original vendees have not been challenged in the suit. It was denied that plaintiff no. 1 is son of Surjan Singh. Passing of judgment dated 27.7.1962 in earlier regular second appeal (referred to by the plaintiffs) has been admitted. However, defendants pleaded that the said judgment does not create any right in favour of the plaintiffs. It was pleaded that plaintiffs are not entitled to possession of the suit land on payment of ` 6000/-. Defendants also claimed to be bonafide purchasers of the suit land for consideration. They also claimed to have become owners of the suit land by adverse possession in the alternative. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 18.9.2007 dismissed the plaintiffs' suit. Two separate first appeals were preferred against the judgment and decree of the trial court. One appeal was preferred by plaintiff no. 1 and the other appeal was preferred by plaintiffs no. 2 to 5. Learned Additional District Judge (Adhoc), Patiala vide common judgment dated 29.1.2010 dismissed both the said appeals. Feeling aggrieved, instant two regular second appeals have Regular Second Appeal No. 465 of 2011(O&M) -4- been preferred – one by plaintiff no. 1 and the other by plaintiffs no. 2 to 5. I have heard learned counsel for the appellants and perused the case file. As noticed hereinabove, facts in this case are not in dispute having crystalized in view of judgment dated 27.7.1962 passed by this Court in RSA No. 226 of 1957 arising out of the earlier litigation. However, the crucial question to be determined is regarding effect of amendment made by Punjab Act No. 12 of 1973 (in short, the Amending Act) in the Punjab Custom (Power to Contest) Act, 1920 (in short, the Principal Act). Vide section 7 of the Principal Act as amended by the Amending Act, right to challenge alienation of immovable property on the ground that alienation is contrary to custom, has been taken away. In view of said amendment in the Principal Act made in the year 1973, alienation can no longer be challenged on the ground that the alienation is contrary to the custom. In the instant case, sale made by Surjan Singh predecessor of the plaintiffs had been successfully challenged in the previous litigation prior to coming into force of the Amending Act. However, Surjan Singh died almost 25 years after the Amending Act came into force. Right to the plaintiffs to seek possession of the suit land accrued on the death of Surjan Singh who died on 20.9.1998 i.e. almost 25 years after the Amending Act had come into force and right to challenge alienation on the ground of being contrary to custom stood abolished. In the aforesaid circumstances, plaintiffs have no right to seek possession of the suit land in view of amendment made in the Principal Act Regular Second Appeal No. 465 of 2011(O&M) -5- by the Amending Act thereby abolishing the right to challenge the alienation on the ground of being contrary to custom. Law to this effect has been laid down by Hon'ble Supreme Court in Darshan Singh v. Ram Pal Singh and another, AIR 1991 Supreme Court 1654 followed in Kesar Singh and others v. Sadhu, 1996(2) R.R.R. 1. In both the said judgments, facts were similar. It was held that after coming into force of the Amending Act, reversioners of the original alienator have no right to seek possession of the land alienated. Learned counsel for the appellants, however, relied on judgment of Hon'ble Supreme Court in Teg Singh and others v. Charan Singh and another, 1977(2) Supreme court Cases 732. However, this judgment is distinguishable on facts. In that case, the original transferor (donor) had died on 28.8.1971 i.e. before coming into force of the Amending Act. Consequently, in that case legal heir of the donor acquired right to seek possession of the gifted land prior to coming into force of the Amending Act and even his suit had been decreed by the trial court prior to coming into force the Amending Act. Consequently, in that case right of heir of the donor had crystalized by way of decree of trial court long before coming into force the Amending Act. In that case, therefore, decree in favour of the heir of the donor was upheld by the Supreme Court. In the instant case, however, original vendor Surjan Singh died long after coming into force of the Amending Act and therefore, judgment in the case of Teg Singh (supra) is completely distinguishable on facts. On the contrary, judgments of Supreme Court in the cases of Darshan Singh (supra) and Regular Second Appeal No. 465 of 2011(O&M) -6- Kesar Singh (supra) are applicable to the facts of the instant case in all respects. For the reasons aforesaid, I find no infirmity much less illegality or perversity in the judgments of the courts below so as to call for interference in second appeals. No question of law much less substantial question of law arises for determination in these second appeals because the question arising in these appeals has already been settled by Hon'ble Supreme Court in the cases of Darshan Singh (supra) Kesar Singh (supra). Both the appeals are, therefore, dismissed in limine being devoid of merit. ( L.N. Mittal ) February 07, 2011 Judge 'dalbir'