GURDIT SINGH Vs. MUNSHA SINGH

JUDGEMENT

(1.) JASWANT SINGH, J. (for himself and on behalf of A. N. Rao C. J.) (Majority view): - These three Appeals Nos. 1944, 1945 and 1946 of 1967 by certificate which are directed against the common judgment and decree dated 29/07/1964 of a Division Bench of the High Court of Punjab and Haryana at Chandigarh involving a question of limitation shall be disposed of by this judgment.

(2.) THE facts leading to these appeals are: As appears from the pedigree-table referred to in the judgment under appeal, Chuhar Singh, a descendant of Amrika, son of Har Lal, sold land admeasuring 167 kanals and 10 marlas situate in village Dhugga, Tahsil Hoshiarpur, to Bhagwan Singh, the grandfather of defendants Nos. 1 to 6 for Rs. 2378.00 vide a registered sale deed dated June 20, 1885. After the aforesaid alienation, one Hamira, of collateral a Chuhar Singh, filed a suit for possession by pre-emption of 52 kanals, 13 marlas out of the aforesaid area which was decreed in his favour on April 29, 1889 on payment of Rupees 671/-. THE mutation in respect of the remainder of the land admeasuring 114 kanals and 17 marlas was attested in favour of Bhagwan Singh on May 4, 1890. Hamira did not retain the property which he secured by pre-emption and sold it back to Bhagwan Singh on September 20, 1890, with the result that Bhagwan Singh again became the owner of the entire land which was originally sold to him by Chuhar Singh who died in 1896. On July 19, 1898, Jiwan, Bela, Jawahar and Jawala, descendants of Bharimian, another son of Har Lal, field a representative suit for declaration to the effect that the aforesaid sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the aforesaid land was ancestral and the sale thereof was without consideration and legal necessity. A Division Bench of the Punjab Chief Court finally disposed of the said suit by judgment dated 29/07/1902 declaring that upon the death of Alla Singh, adopted son of Chuhar Singh, and extinction of his line, the aforesaid sale of 1885 would not affect the reversionary interest of Bela and Jawahar. This declaration was made subject to the condition that before these plaintiffs or their successors-in-interest would take possession of their share of the land sold, they would pay to Bhagwan Singh or his successors-in-interest a sum bearing the same proportion of Rupees 1611/- (i.e. Rs. 2378 minus Rupees 767/-) as their share in the land sold bore to the whole area sold. On the death of Alla Singh, Kishan Singh, his only son, succeeded him. On 18/12/1945, Jawahar Singh and Bela Singh brought a suit for possession of land admeasuring 113 kanals and 18 marlas situate in village Dhugga alleging that Kishan Singh having died on 15/08/1945, and the line of Alla Singh having become extinct, they were entitled to possession of the land in accordance with the aforesaid decree of the Punjab Chief Court. This suit was followed by two more suits of identical nature for the remainder of the land by two other sets of collaterals of Bhagwan Singh, one by Waryam Singh and his three brothers who claimed half of the entire holding and the other by Khazan Singh and Jagat Singh, who claimed one-fourth share of the holding. THE Trial Court consolidated all these three suits and proceeded to try them together. Eventually it decreed the first two suits in favour of the plaintiffs pursuant to the aforesaid decree of the Chief Court of Punjab holding that Kishan Singh had died on 15/08/1945. It, however, dismissed the suit brought by Khazan Singh and Jagat Singh on the ground that they being the successors-in-interest of Hamira, who had brought the aforesaid pre-emption suit, were estopped from claiming possession of the land. On appeal, the District Judge, Hoshiarpur, dismissed all the three suits as premature holding that the factum of Kishan Singh's death had not been established. THE decision of the District Judge was affirmed in appeal by a single Judge of the Punjab High Court by his judgment and decree dated 3/08/1951. THE plaintiffs in the last mentioned suits, viz. Waryam Singh and his three brothers, Jawahar Singh and Bela Singh, and Khazan Singh and Jagat Singh again instituted three separate suits (out of which the present appeals have arisen) on 28/10/195 2/12/1952 and 12/05/1953, respectively for the same relief which was sought by them in the previous suits. In these suits, the plaintiffs averred as follows with regard to the cause of action:-

(3.) BEFORE adverting to the contentions raised before us on behalf of the appellants, we must first dispose of the preliminary objection raised by Mr. Mehta, counsel for the contesting respondents, regarding the maintainability of the appeals. According to Mr. Mehta, the said appeals have been rendered untenable and have to be dismissed in view of the amendment introduced in Sec. 7 of the Punjab Customs (Power to Contest) Act, 1920 (Act 2 of 1920) by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) which has been given a retrospective operation by sub-section (2) of Section 1 of the Amending Act. This contention is, in our opinion wholly misconceived and cannot be allowed to prevail as it overlooks the savings clause contained in Section 4 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) which has been left untouched by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973), and runs thus:-