The enforceability of a declaratory decree under the Punjab Custom (Power to Contest) Act and the impact of the Amendment Act on the right of reversioners to challenge alienation.

Vinod K.Sharma, J.

1. This regular second appeal, by the defendant/appellant, is directed against the judgment and decree dated 6.5.1985, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for possession of land measuring 0B-3B-1B (Pukhta), situated at village Dakha, Tehsil and District Ludhiana, was ordered to be decreed.

2. The pleaded case of the plaintiff/respondents was, that Basta Singh father of one of the plaintiffs was the original owner of the suit land. He sold the suit land in favour of Gurbax Singh defendant No. 1 vide sale deed dated 1.12.1956. Ajaib Singh (now deceased) challenged the alienation by way of declaratory suit on the ground, that the alienation was without consideration and legal necessity. The suit for declaration filed by Ajaib Singh deceased, was decreed vide judgment and decree dated 28.8.1958 and decree for declaration was passed, that the sale shall not affect the reversionary rights of Ajaib Singh. Meanwhile, Ujagar Singh, defendant No. 2/appellant filed a pre-emption suit regarding the same very sale against Basta Singh and Gurbax Singh. The suit for pre-emption was also decreed vide judgment and decree dated 25.11.1958. As a consequence of the decree, the suit property was mutated in the name of Ujagar Singh and the possession of the suit land was also transferred in execution of the pre-emption decree. It was pleaded by the plaintiff/respondents, that the original sale deed in favour of Gurbax Singh, defendant No. 1, was set aside by the Court of competent jurisdiction being without consideration and legal necessity, as such Gurbax Singh could not pass over better title to Ujagar Singh than what he had himself by virtue of pre- emption decree, with a result that Ujagar Singh, defendant No. 2, was also subject to the same restraint and limitation regarding the suit land. It was also the case of the plaintiff/respondents, that according to law, a declaratory decree entails for the benefit of the nearest heir of the vendor and immediately after the death of original vendor, the heir becomes full- fledged owner of the property and is entitled to possession of the same. The case set up was, that as defendant No. 2/appellant has failed to hand over the possession of the suit property to the plaintiffs in pursuance to the declaratory decree in their favour, hence the present suit.

3. On notice, defendant No. 1 did not contest the suit and was proceeded ex parte. The suit was contested by defendant No. 2/appellant by taking preliminary objections, that the plaintiff/respondents have no cause of action against the answering defendant, who was bona fide transferee for consideration. The suit was said to be not maintainable. The suit was said to be not properly valued for the purposes of court fee and jurisdiction. On merits, it was admitted that the suit land was alienated vide registered sale deed, but it was without consideration and legal necessity. It was averred, that defendant No. 2/appellant was not a party to the declaratory suit and as such was not affected by such decree, if passed. The case set up was, that pre-emption decree passed a valid and legal title on defendant No. 2/appellant i.e. pre-emptor/decree-holder, and he was not bound by any decree passed subsequently. It was prayed, that the suit of the plaintiff/respondents be dismissed. In replication, averments made in the plaint were reiterated and those in the written statement were denied.

4. On the pleadings of the parties, the learned trial Court framed the following issues :-

"1. Whether the suit is bad for mis-joinder of parties ? OPD.

2. Whether the suit is not maintainable ? OPD

3. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPP

4. Whether the plaintiffs are entitled to the possession of the suit land ? OPP

5. Whether the defendant No. 2 is a bona fide transferee. If so its effect ? OPD

6. Relief."

As the onus to prove issue No. 1 was on d