The 1973 Amendment Act retrospectively took away the right to enforce the customary law of recovering possession where alienation was without legal necessity, rendering the earlier declaratory decree no longer binding.

Adarsh Kumar Goel, J.

1. This appeal has been placed before this bench in pursuance of order of learned Single Judge dated 14.8.1987. Order of reference is as under :-

"This is plaintiffs second appeal, whose suit for possession was decreed by the trial court but was dismissed in appeal. The plaintiffs filed the suit for possession by redemption on payment of Rs. 4500/- in respect of 2203/4777 share out of the land measuring 374 kanals 9 marlas on the allegations that Naranjan Singh son of Inder Singh, who was previously resident of West Pakistan, was father of the plaintiffs Nos. 1 to 6 and husband of plaintiff No. 7. He was owner in possession of the land measuring 220 kanals 6 marlas comprising rectangle No. 63/4 Killa Nos. 1 to 25 situated in Singpura Chak No. 28, G.B. Tehsil Jaranwala, District Layallpur as per the entries contained in the record of rights for the year 1938-39. Naranjan Singh mortgaged half share of the land with Wasava Singh, father of Rattan Singh, defendant No. 17 and thereafter sold the entire said land to Dalip Singh father of defendant Nos. 1 to 3 and Shiv Dayal Singh father of defendant Nos. 4 to 6 and father in law of defendant No. 7 and grand father of defendant Nos. 8 to 10. The said sale and mortgage were challenged by filing a declaratory suit under custom on the ground that the said sale and mortgage were without legal necessity and the land was ancestral qua them. The said suit was decreed by the trial court on 18th April 1944. The said decree was maintained upto the High Court of Lahore vide copy Exhibit P.1 dated 4th November 1947. Dalip Singh had also land measuring 257 kanals 8 marlas other than the land purchased by him from Naranjan Singh. In lieu of the total land left behind by Dalip Singh, suit land was allotted to him vide Sanads Exhibits P. 11 to P.14. Naranjan Singh vendor died on 14th April 1969. Thus the plaintiffs filed the present suit within three years thereof i.e. on 25th February, 1972 on the basis of the declaratory decree obtained by them which was confirmed upto the High Court vide copy Exhibit P.1. Certain other persons to whom the land was sold by defendant Nos. 1 to 3 were also impleaded as defendants in the suit. Devinder Singh defendant filed his own written statement and pleaded that Dalip Singh died in Pakistan and his sons inherited the land held by him in Pakistan. He further stated that after the partition of India, defendant Nos. 1 to 3 and Shiv Dayal Singh were given land in lieu of the land possessed by Dalip Singh. However, he denied the knowledge about the remaining averments made in the plaint. Defendant Nos. 2, 3, 8 to 13 and 16 to 22 filed separate written statement and pleaded that they had never seen Naranjan Singh and have no knowledge about the land held by him in Pakistan and further that Naranjan Singh never mortgaged the land with Basawa Singh father of Rattan Singh, defendant No. 17. They also pleaded that if the alleged decree is proved it was illegal and not binding on them. It was also contended that the final judgment copy Exhibit P.1 dated 4th November, 1947 being judgment of a foreign court was not enforceable and valid in India. They also pleaded that defendant Nos. 1 to 10 had sold or mortgaged the land in dispute to defendant Nos. 11 to 28 through different sale deeds and they were not bound by the decree obtained by the plaintiffs as they are bona fide purchasers for consideration without notice. The trial court found that the suit land had been allotted in lieu of the land contained in the declaratory decree passed on 18th April 1944 by Sub Judge Ist Class, Layallpur, in favour of the plaintiffs. It was further held that it could not be said that the said decree had been passed by a foreign court. The suit was held to be within time from the date of death of Naranjan Singh on 14th April, 1969, the suit having been filed on 25th February 1972. The plea of the defendants that they were bona fide purchasers for consideration, w