RSA NO.1192 OF 2003 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 29.7.2008 Sant Singh and others ...Appellants VERSUS Harbans Singh and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Avnish Mittal, Advocate for the appellants Mr.Surjit Singh, Sr.Advocate with Mr.Sumit Abrol, Advocate for the respondents Permod Kohli, J. (Oral) Both the courts have dismissed the suit filed by the plaintiffs, appellants herein for possession of the suit land on the basis of the declaratory decree dated 28.5.1948 passed in Civil Suit No.95 of 1947. Jag Ram son of Hira executed the sale deed in favour of defendant no.1-Kartar Singh in respect of land measuring 80 bighas 17 biswas. This sale was challenged by Ram Krishan son of Jawahar Singh in Civil Suit No.95 of 1947. The suit was decreed in RSA NO.1192 OF 2003 :2: respect of the land except Khasra Nos.5308, 5678, 5310. It was held that plaintiff-Ram Krishan is entitled to actual possession of the suit land after the death of Jag Ram on payment of Rs.8500/- to Kartar Singh, vendee. Ram Krishan was unmarried and died issueless. He had a brother Lal Singh who survived him. Lal Singh died leaving behind Plaintiffs no.1 to 3 and Meghar Singh, his sons. It is pleaded that Ram Krishan during his life time had executed a will dated 19.9.1974 in favour of his nephews i.e. plaintiffs no.1 to 3 and Meghar Singh sons of Lal Singh. Lal Singh had also executed a will during his life time in favour of the plaintiffs being his sons. Plaintiffs, therefore, claimed their right on the basis of will dated 19.9.1974 allegedly executed by Ram Krishan and the will dated 17.9.1974 allegedly executed by Lal Singh. Jag Ram died on 1.9.1994. After the death of Jag Ram, the plaintiffs filed an application for issuance of warrant of possession on the basis of the decree dated 28.5.1948. This application was dismissed vide order dated 5.5.1995 (Ex.P7). However, plaintiff was allowed to file a separate civil suit for declaration and possession. Thereafter the present suit came to be filed by the plaintiffs in the year 1995. Defendant no.1 did not appear after service and was proceeded ex-parte. Defendant no.2, however, contested the suit on various grounds including that the decree dated 28.5.1948 is nullity and not binding upon his rights. He also denied the relationship of the plaintiffs with the deceased Jag Ram and Ram Krishan. Defendant also pleaded that Lal Singh had filed a suit for pre-emption against Kartar Singh which was decreed, but RSA NO.1192 OF 2003 :3: Lal Singh failed to deposit Rs.15,000/- as directed by the Court, even though the time for deposit of the amount was extended. It is accordingly pleaded that the present suit is barred by principle of res judicata. On the basis of the pleadings of the parties, as many as nine issues have been framed. However, issue no.5 is the main issue which reads as under:- “5.Whether the plaintiffs are entitled for recovery of possession of the suit land, on the basis of judgment and decree dated 28.5.1948 on payment of Rs.8500/- to the defendant no.1? OPP.” After the parties led their respective evidence, trial court held that the plaintiffs have proved the wills executed by Ram Krishan and Lal Singh in their favour. While deciding issue no.5, the trial court held that the decree dated 28.5.1948 is nullity and no right flows therefrom. This observation has been made after relying upon a judgment of this Court in the case of Chand Singh vs. Smt. IND Kaur, 1974 PLR 226 (P&H). In this judgment, it was held that suit to contest under customs, alienation of ancestral land by a collateral is not maintainable. It was also held that declaratory decree obtained by a reversioner prior to the amendment is not nullity. The trial court further relied upon a judgment of the Hon'ble Supreme Court in the case of Teh Singh vs. Charan Singh, AIR 1977 (SC) 1699 wherein Hon'ble Supreme Court held that on account of the amendment to Punjab Customs (Power to Contest) Amendment Act, 1973, the customary rights have been taken away and thus, the decree even passed earlier is nullity. Aforesaid RSA NO.1192 OF 2003 :4: judgment was followed by Hon'ble Supreme Court in a later judgment in the case of Kesar Singh vs. Sadhu, JT 1996 (2) (SC) 334. Basing its findings on the aforesaid two judgments, the decree dated 28.5.1948 was held to be nullity and thus, the suit for possession filed by the plaintiffs came to be dismissed vide judgment and decree dated 12.2.2002 by the trial court. Plaintiffs preferred an appeal in the court of Additional District Judge, Sangrur. Before the lower appellate court, the plaintiffs pleaded that the decree dated 25.8.1948 was based upon right of pre- emption. Considering this argument, the lower appellate court held that the plaintiffs have failed to produce a certified copy of the plaint or any other material to establish that the decree dated 28.5.1948 passed in Civil Suit No.95 of 1947 was based upon right of pre-emption. On other question, the lower appellate court also relied upon the judgments of the Hon'ble Supreme Court referred to above and dismissed the appeal vide impugned judgment and decree dated 17.12.2002. Learned counsel for the appellants has argued before me that both the courts have committed glaring illegality in dismissing the suit. According to the learned counsel, the decree dated 28.5.1948 was based on exercise of right of pre-emption. I have perused the copy of the decree-sheet on record of the trial court. From the decree-sheet, it is not revealed as to on what basis, the suit had been decreed. No other material has been placed on record to establish that the decree was passed in a suit for pre-emption. To the contrary, the findings of the trial court are that the suit was filed RSA NO.1192 OF 2003 :5: on the basis of custom which was the plea raised by the plaintiffs in their plaint before the trial court. Hence I do not find any infirmity in the impugned judgments and decrees. No substantial question of law arises. I find no merit in this appeal which is accordingly dismissed. (PERMOD KOHLI) JUDGE 29.7.2008 MFK RSA NO.1192 OF 2003 :6: