BISHNA Vs. SOHNA

JUDGEMENT

(1.) Bishna, Sohna and Khazana, sons of Alla, made an exchange of their agricultural land measuring 63 kanals and 14 marlas with Achhru predecessor-in-interest of defendants 1 to 7 and obtained the land in dispute. Plaintiffs 3 ot 5, sons of Sohna, challenged the said exchange by means of a usual declaratory suit. Their suit was dismissed originally by the trial Court, but on appeal the District Judge granted them a decree on 8th December, 1950. In the judgment of the District Judge, Exhibit P.9, it was also provided as under :-

(2.) Some time after the aforesaid decree Khazana died. On 7th April, 1951, plaintiffs 3 to 5 filed a suit for possession of one-third share of the land given by Bishna, Sohna and Khazana in exchange to Achhru predecessor-in-interest of defendants 1 to 7. This suit was dismissed on 1st November, 1951, on the ground that the plaintiffs were not able to comply with the terms of the decree in the lifetime of Bishna and Sohna, because they could not possibly return the exchanged land during the lifetime of their father and uncle. They went in appeal to the District Judge but failed there also on 11th January, 1952, on the ground taken by the trial Court as also on the ground that they had no locus standi to sue for possession during the lifetime of their father Sohna. The present suit was filed on 2nd June, 1952, by Bishna, Sohna and the previous three plaintiffs who are the sons of Sohna. The prayer made in this suit was that the possession of the exchanged land to the extent of Khazana's share should go to Bishna and Sohna and, in the alternative, to the previous plaintiffs i.e., the sons of Sohna. The defendants contested this suit on the ground that plaintiffs 3 to 5 had previously failed in their suit for possession and that the judgment in the previous suit operated as res judicata against them. The defendants also contested the right of plaintiffs 1 and 2 to sue for possession on the ground that they had joined in the alienation and had thereby precluded themselves from bringing a suit of possession. The two Courts below have given effect to the pleas taken by the defendants and have dismissed the plaintiffs suit. All the five plaintiffs have now come in second appeal to this Court.

(3.) Mr. S.D. Bahri, learned counsel appearing for the plaintiff-appellants contends that the previous suit of the sons of Sohna was dismissed mainly because they were not able to restore the land they had obtained in exchange, but the said ground had now vanished when all the plaintiffs have shown their willingness to restore the land and are in a position to do that. He further contends that Bishna and Sohna were certainly entitled to challenge the alienation made by Khazana qua one-third of his property and that section 6 of the Punjab Custom (Power to Contest) Act, 1920 was no bar to a suit by them. He admitted that the suit, if brought by them, would not be successful, but he urged that the words 'entitled to impeach the alienation' in section 8 of the Punjab Limitation (Custom) Act, 1920 , do not necessarily mean "entitled to impeach the alienation successfully." His contention is that every person, who is entitled to sue, can take advantage of the declaratory decree passed in a suit brought by an reversioner challenging the alienation. He relies for this proposition on section 8 of the Punjab Limitation (Custom) Act, 1920 , which lays down as under :-