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2000 DIGILAW 239 (PNJ)

Tek Singh v. Punjab Government - Defendants

2000-02-29

IQBAL SINGH

body2000
JUDGMENT Iqbal Singh, J. - Plaintiff-appellants filed a suit for permanent injunction on the allegations that their father Jhanda Singh was the owner of the suit land who dies three years prior to the filing of the suit. Mutation No. 4714 was sanctioned in favour of the Punjab Government as the suit land had been declared surplus on 22.2.1961. According to the plaintiffs, in view of the provisions of the Punjab Land Reforms Act, 1973, if a son of a land owner was major on 24.1.1971, he would be entitled to one unit i.e. seven hectares of land. It was alleged that plaintiffs Tek Singh and Shamsher Singh who were aged 50 and 37 years, respectively on the date of filing of the suit had attained majority on 24.4.1971 and they were also in possession of the land and, therefore, they were entitled to one unit of land each on 24.1.1971. On the strength of the above, the plaintiff challenged mutation No. 4714 and the allotment of land in question to Gurdev Singh defendant as being illegal, null and void. The plaintiffs also prayed for a decree for permanent injunction restraining defendant No. 3 Gurdev Singh from forcibly dispossessing them from the suit land. 2. Suit was contested. Defendants 1 and 2 in their written statement, raised preliminary objections that the plaintiffs had no locus standi to file the present suit; the civil Court had no jurisdiction to try the suit under Section 47 of the Pepsu Tenancy Act and under Section 21 of the Land Reforms Act, 1972; the present suit is not maintainable in the present form; the plaintiffs have not served notice under Section 80 of the Code of Civil Procedure; the suit is time barred and that the application moved by Jhanda Sing father of the plaintiffs had already been dismissed on 29.5.1962 by the Commissioner, Patiala and no appeal was preferred against that order. On merits, it was pleaded that defendants Nos. 1 and 2 have got mutated Khewat No. 1392/2610 belonging to Jhanda Singh as per the jamabandi for the year 1980-81. It was further pleaded that on 22.2.1961 the land was declared surplus and the appeals by Jhanda Singh were dismissed upto the level of Commissioner, Patiala. On merits, it was pleaded that defendants Nos. 1 and 2 have got mutated Khewat No. 1392/2610 belonging to Jhanda Singh as per the jamabandi for the year 1980-81. It was further pleaded that on 22.2.1961 the land was declared surplus and the appeals by Jhanda Singh were dismissed upto the level of Commissioner, Patiala. It was further stated that the suit land had been allotted to Gurdev Singh son of Bazir Singh and the possession had also been delivered to him through Kanungo Halka vide rapat No. 496 dated 27.8.1988. 3. Defendant No. 3 in his separate written statement took preliminary objections that the civil Court had no right to hear the case; the plaintiffs have not served notice under Section 80 of the Code; the plaintiffs had no locus standi to file the present suit; the plaintiffs had no cause of action against the defendants; the suit is not maintainable in the present form. It was also stated that the present suit had become infructuous as (he) defendant No. 3 had taken possession of the suit land and he also deposited compensation to the tune of Rs. 1050/- and the plaintiffs have not disclosed true facts to the Court. On merits, it was reiterated that he (defendant No. 3) had taken possession of the suit land vide rapat No. 496 dated 27.8.1988. 4. Plaintiffs filed replication controverting the allegations contained in the written statement. On the rival pleadings of the parties, the following issues were framed, besides that of relief : 1. Whether the plaintiffs are in lawful possession of the suit land ? OPP 2. Whether the plaintiffs are entitled for the injunction restraining the defendants 1 and 2 from allotting the suit land to defendant No. 3 and dispossessing the plaintiff ? OPP 3. Whether the Civil Court has no jurisdiction to entertain the suit ? OPD 4. Whether the suit is bad for want of notice under Section 80 C.P.C. ? OPD 5 Whether the defendant No. 3 had already taken possession in the suit land ? If so, its effect ? OPD. 5. Issues 1, 2 and 5 were decided against the plaintiffs and in favour of defendant No. 3. Under issue No. 3 it was found that the civil Court had no jurisdiction to try the present suit. Issue No. 4 was, however, decided against the defendants. Suit was consequently dismissed. 6. If so, its effect ? OPD. 5. Issues 1, 2 and 5 were decided against the plaintiffs and in favour of defendant No. 3. Under issue No. 3 it was found that the civil Court had no jurisdiction to try the present suit. Issue No. 4 was, however, decided against the defendants. Suit was consequently dismissed. 6. Aggrieved thereafter the plaintiffs filed appeal. Appeal was dismissed by the learned Additional District Judge, Sangrur by judgment and decree dated 12.2.1998. Hence this second appeal at the instance of the plaintiffs. 7. I have heard learned counsel for the parties. Learned counsel for the appellants while challenging the findings of the Courts below on issue No. 3, contended that the Civil Court has jurisdiction to try the suit and to grant relief even though it may be expressly barred by a statute. Learned counsel also contended that in the present case, the possession had not been taken by the respondent-State of Punjab and the appellants continue to be the owners in possession of the suit land. It was vehemently contended that the appellants were never dispossessed from the land in question and the alleged rapat No. 496 dated 27.8.1988 was merely a paper transaction and the assumption of the Courts below that as a result of the mutation aforesaid the plaintiffs were divested of title or of possession was erroneous and wrong. Learned counsel in support of his contentions, placed reliance on Balwant Singh and another v. Daulat Singh (Dead) by L.Rs. and others, 1971(7) Supreme Court Cases 137, a Full Bench judgment of this Court in State of Haryana and others v. Vinod Kumar and others, 1986 P.L.J. 161 and Ujagar Singh (dead) by L.Rs. v. The Collector, Bhatinda and another, Judgment Today 1996(6) S.C. 713. On the other hand, learned counsel for the respondents contended that the Courts below were justified in holding that once the land had vested in the State Government, it having been declared as surplus, the civil Court had no jurisdiction to try the suit. 8. On a consideration of the arguments raised by learned counsel for the parties, I am of the opinion that no exception can be taken to the findings recorded by the Courts below. 8. On a consideration of the arguments raised by learned counsel for the parties, I am of the opinion that no exception can be taken to the findings recorded by the Courts below. As noticed above, the plaintiff-appellants had filed a suit for permanent injunction restraining the official respondents from allotting land in favour of Gurdev Singh and further restraining Gurdev Singh from forcibly dispossessing them from the suit land. Both the Courts below after appraising the evidence led by the parties recorded a finding of fact that the suit land had been declared surplus in the hands of Jhanda Singh on 22.2.1961. The Courts further held that no doubt, after repealing of the Pepsu Tenancy Act, the person becoming major on 24.1.1971 was entitled to one unit of land but in the present case, the land had been declared surplus on 22.2.1961 and the appeals against the order declaring the land as surplus were dismissed by orders Exhibit DW4/A and DW4/B. It was also proved on record that the land in question had been allotted to defendant Gurdev Singh vide order Exhibit DW4/C. The factum of the land having vested in the State Government was amply proved on record by other documentary evidence consisting of mutation No. 4714 Exhibit DW4/D and mutation No. 6083, Exhibit DW4/E and copies of jamabandi Exhibits DW4/F and DW4/G. Not only this, from the testimony of Sohan Lal Patwari DW.1, it also stood proved on record that possession of the land had been delivered to Gurdev Singh defendant in pursuance of warrant of possession Exhibit D.1, vide Rapat Roznamcha dated 27.8.1988, Exhibit D2. The present suit was, however, filed on 3.9.1988. Therefore, the possession of the land having already delivered before the filing of the suit, no injunction could be issued. 9. Above apart, in the present suit for permanent injunction, the real challenge is not to the order of the Collector Agrarian, Sunam who declared the land in question as surplus against which order, however, the appeals filed by Jhanda Singh were dismissed upto the level of the Commissioner, Patiala. Not only this, the land even thereafter had been allotted to Gurdev Singh defendant and he was given possession also. Not only this, the land even thereafter had been allotted to Gurdev Singh defendant and he was given possession also. The trial Court having regard to the provisions of Section 47 of the Pepsu Tenancy and Agricultural Land Act, 1955 and Section 21 of the Punjab Land Reforms Act, 1972 held that the civil Court had no jurisdiction to try the suit calling in question the order passed by the revenue authorities under the aforesaid Acts. The appellate Court concurred with these findings of the trial Court and also held that as per the mutations aforesaid, the land had vested in the Provincial Government and Jhanda Singh cultivated the suit land on behalf of the State. 10. I have gone through the authorities cited by learned counsel for the appellants and find that none of them is applicable to the facts of the present case and are clearly distinguishable on facts. In Balwant Singh and anothers case (supra), the widow of the original owner gifted some land to her adopted sons by effecting a mutation. Suit for declaration filed by one of the reversioners of the original owner was decreed and that decree attained finality. The widow claimed to be absolute owner of the land after the coming into force of the Hindu Succession Act, 1956 and executed gift deeds in favour of one of her sons and died later on. The reversioners thereafter filed a suit for recovery of possession of the land on the basis of the earlier decree. It was in these circumstances, the Supreme Court had held that the first mutation had not resulted in divesting the widow of her title and possession to the properties. This is not the situation in the present case as it stood proved on record that the land in the hands of Jhanda Singh was declared surplus and it was mutated in favour of the Punjab Government vide mutation No. 4714. Thus, the facts of the above reported case are not applicable to the facts and circumstances of the present case. 11. Thus, the facts of the above reported case are not applicable to the facts and circumstances of the present case. 11. In Vinod Kumar and others case (supra), a suit was filed by respondents Vinod Kumar and others for declaration challenging the order of the Collector declaring some of their land as surplus area and some land as permissible area in the hands of their father Gobind Parshad, on the grounds of it being void and inoperative, and for permanent injunction restraining the appellants from utilising the said land under the provisions of Haryana Ceiling on Land Holdings Act, 1972. In the year 1953, Gobind Parshad by way of family settlement transferred 170 acres of land in the name of his wife. Thereafter, a family settlement took place sometime in the year 1954 whereby 3/5th of the remaining land fell to the share of Vinod Kumar, Rattan Lal and Om Parkash respondents whereas 2/5th was kept by Gobind Parshad. Gobind Parshad died on 14.4.1976 and the land held by him was mutated in the name of his son Anil Kumar and his widow. The order of the Collector was challenged on the ground that in spite of the fact that the plaintiffs were recorded owners of the land to the extent stated above, no notice was served upon them by the Collector before declaration of the surplus area and the permissible area. But in this case, the father of the appellants had challenged the order declaring the land as surplus area before the prescribed authority and his appeal was dismissed to the level of Commissioner, Patiala. No further appeal was preferred by him before the Financial Commissioner and, therefore, the order of the Collector became final. The present suit was only a suit for permanent injunction and there was no challenge to the order declaring the land as surplus area which has already become final. Therefore, this authority is not helpful to the appellants. 12. In Ujagar Singhs case (supra), the land of the appellant Ujagar Singh was declared surplus under the Pepsu Tenancy Agricultural Lands Act, 1955. The land which was declared surplus, was not utilised and the same remained with the appellant. After the Punjab Land Reforms Act, 1972 came into force in the year 1973, steps were taken to take possession of the land which had been declared surplus under the Pepsu Tenancy Agricultural Lands Act, 1955. The land which was declared surplus, was not utilised and the same remained with the appellant. After the Punjab Land Reforms Act, 1972 came into force in the year 1973, steps were taken to take possession of the land which had been declared surplus under the Pepsu Tenancy Agricultural Lands Act, 1955. The Supreme Court on this issue held that once the land declared as surplus under the Pepsu Act did not vest in the State Government as the possession thereof had not been taken, there has to be a fresh determination in respect of the area which the appellant was entitled to hold under the Act. It was further held that it is only when the possession of the land, which has been declared as surplus area, is taken over by the State Government, then only it shall be deemed that surplus area has been acquired by the State Government with all rights, title and interest of person concerned in such land are extinguished and vest in the State Government. This judgment against does not come to the rescue of the appellants because this has been concurrently found as a fact by both the Courts below that the land in the hands of Jhanda Singh father of the appellants had been declared surplus and was later on allotted to one Gurdev Singh. The factum of delivering possession of the said land which was declared surplus in the hands of Jhanda Singh on 27.8.1988 was amply proved on record vide document Exhibit D.1. This finding being a pure finding of fact cannot be over-looked or disbelieved. Once it is proved that the possession had been delivered to Gurdev Singh, all rights, title or interest of Jhanda Singh or his sons in the said land stood automatically extinguished. So, in the instant case, no question could arise about the fresh determination of the land which had already been declared as surplus and later on allotted to one Gurdev Singh and even possession thereof had been delivered to him. 13. As noticed above, since the possession of the land had been delivered to Gurdev Singh on 27.8.1988, no suit for permanent injunction restraining the defendants from allotting the land to any other person, which was filed on 3.9.1988, could be filed or a decree for permanent injunction passed in the above circumstances. 13. As noticed above, since the possession of the land had been delivered to Gurdev Singh on 27.8.1988, no suit for permanent injunction restraining the defendants from allotting the land to any other person, which was filed on 3.9.1988, could be filed or a decree for permanent injunction passed in the above circumstances. The findings recorded by the Court below are pure findings of fact and based on correct appreciation of law and cannot be interfered with in second appeal especially when learned counsel for the appellants has not been able to point out from the evidence on the record to show that the findings returned by the Courts below are against evidence, or perverse, illegal and against law. It has also not been shown that the above findings have been returned by misinterpreting the evidence or that any material evidence had been ignored from consideration. In this view of the matter I fully concur with the findings recorded by both the Courts below and the same are affirmed. 14. As far as the prayer made in Civil Misc. 6816-C of 1998 for grant of permission to file and place on record certain documents by way of additional evidence is concerned, it may be noticed that the appellants through this application intended to produce a copy of jamabandi for the year 1995-96, Annexure A-1, a copy of khasra girdwari or the years 1991-92 to 1997-98 Annexure A-2, and a copy of order dated 30.6.1976, Annexure A-3 passed by the Collector Agrarian Sub Division, Sunam. The prayer made in this application had been resisted by the respondents by filing a reply. 15. I have considered the submissions made in the application and find that the prayer cannot be granted. Annexure A-1 is a copy of jamabandi for the year 1995-96. In jamabandi Annexure A-1, in the column of "cultivator", Jhanda Singh son of Bishan Singh is shown as Gair-marusi. Similarly, in the khasra girdwari entries for the year 1991-92, Annexure A-2 also, in the column "cultivator", Jhanda Singh son of Bishan Singh is shown as Gair-Marusi. But in copies of khasra girdwari for the years 1992-93 to 1997-98, name of Jhanda Singh does not find mention. No reliance can be placed on these revenue documents as Jhanda Singh died long back in the year 1985 whereas these documents pertain to the period subsequent to the death of Jhanda Singh. But in copies of khasra girdwari for the years 1992-93 to 1997-98, name of Jhanda Singh does not find mention. No reliance can be placed on these revenue documents as Jhanda Singh died long back in the year 1985 whereas these documents pertain to the period subsequent to the death of Jhanda Singh. Moreover, it is also not shown as to how these documents can be taken note of at this stage. As far as the order dated 30.6.1976 passed by the Collector Agrarian is concerned, this is about 23 years old document. It is stated in the application that order Annexure A-3 was not in the knowledge of the appellants and it was in the knowledge of their father Jhanda Singh, who has since died, and despite exercise of due diligence and care, they could not produce it before the Courts below. But it is not shown as to how and when this document came to their knowledge. A perusal of the order Annexure A-3 shows that certified copy thereof was applied for on 7.12.1998 i.e. after 22 years. It is not shown how they came to know about the existence of this document. It is not possible that the appellants would not know about the existence of this document during such a long period of 22 years. Moreover, it is not shown that the aforesaid documents are required to be produced to enable this Court to pronounce the judgment, particularly, in view of the concurrent finding of fact arrived at by the Courts below. The application under Order 41 Rule 27 of the Code of Civil Procedure for producing the aforesaid documents by way of additional evidence thus, has no merit and is consequently dismissed. 16. For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed. Appeal dismissed.