UTTAM SINGH Vs. PARTAP SINGH

JUDGEMENT

(1.) THE plantiff has come up in second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissing his suit for possession of the suit land.

(2.) THE fads :gian Singh was the owner of the land in lieu of which the suit land was allotted in consolidation He sold the same to Moola Singh father of defendant Nos. 1 and 2 (respondent Nos. 1 and 2) and grand father of defendent Nos. 3 and 4 (respondent Nos. 3 to 5) by four sale deeds dated 29-1-1918, 12-4-1918, 28-5-1918 and 20.-3-1918. The plaintiff challenged the sales through a declaratory suit on the ground that the property sold was ancestral qua him and the vendor and the sales were not effected for legal necessity or otherwise justified as an act of good management The suit was decreed by judgment and decree dated 7-6-1916 and the sales were declared invalid and in-effective against the right of the plaintiff The vender died on 1-3-1927 leaving behind Smt. Shanti his widow who died on 30-5-1977 and the suit for possession was filed on 8-6-1977. The trial Judge decreed the suit but on appeal, the first appelate Court dismissed the same on the solitary ground that was filed beyond 'limitation. The first appellate Court held that the cause of action arose to the plaintiff to bring a suit for possession on the commencement of the Hindu Succession Act and since the suit was not filed within three years from the date when the cause of action arose, it was beyond limitation.

(3.) THE approach of the first appellate Court to say the least is perverse. Section 7 of the Punjab Custom (Power to Contest) Act, 1920 (for short the Act) provides that no person shall contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. Meaning thereby, the alienation of ancestral property could be challenged being contrary to custom. This Section was amended by Section 3 of the Punjab Custom (Power to Contest) Amendment Act, 1973 in view of which no challenge could be made to the alienation of any immovable property whether ancestral or non-ancestral on the ground that it is contrary to custom. A declaratory decree already obtained by reversioner would continue to be operative as a sending Act does not render such a decree a nullity Consequently after such a decree had been passed, a suit for possession of property alienated earlier by reversioner in not barred under Section 7 of the Act.