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2003 DIGILAW 1239 (PNJ)

Kailash Wati v. Karam Chand

2003-09-03

VINEY MITTAL

body2003
JUDGMENT Viney Mittal, J. - The plaintiffs are in appeal. They filed a suit for possession of 10 kanals 16 marlas of land and for recovery of Rs. 977/- as mense profits regarding the crops for kharif 1973 to Rabi 1976 and for future mense profits from the date of the suit till the date of delivery of possession. 2. Rameshwari Dass was the original plaintiff. He died during the pendency of the suit. His legal representatives were brought on record. Rameshwari Dass had purchased the land in dispute by offering the highest bid for the suit land including some other land in the public auction held by the Central Government. His bid for Rs. 13,600/- was accepted. The sale was confirmed on September 24, 1959. A sale certificate in this regard was issued in his favour on August 21, 1972. It was claimed that defendant Karam Chand is in unauthorised and unlawful possession of the suit land and had no right to continue in its possession and as such a suit for possession was filed. On the basis of the wrongful possession of the defendant, mense profits were also claimed. 3. The defendant contested the suit He filed a written statement claiming that the plaintiffs were not the owners of the suit land. He further claimed that he was recorded as a tenant of the suit land. Various other objections were also taken. 4. At this stage, it may be relevant to notice here that the land in question was auctioned by the competent authority under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the rules framed thereunder. Since the auction of the suit land was conducted on the basis of a press note issued by the State Government, therefore, this court vide a judgment dated January 13, 1961 in case of Bishan Singh v. Central Government held that the aforesaid auctions conducted by the State Government were in violation of the provisions of the Act and as such were set aside. However, subsequently, Chief Settlement Commissioner in exercise of his power under Rule 87 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 issued the instructions to transfer a portion of the land in question after meeting the claims of the lessees and sub-lessees of the land to the defeated auction purchasers at the rate at which it was auctioned. 5. However, subsequently, Chief Settlement Commissioner in exercise of his power under Rule 87 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 issued the instructions to transfer a portion of the land in question after meeting the claims of the lessees and sub-lessees of the land to the defeated auction purchasers at the rate at which it was auctioned. 5. After the sale in favour of Rameshwari Dass was set aside on the ground that it was conducted under press note issued by the Central Government, which had no legal force, Karam Chand, defendant, claiming himself to be the sub- lessee of the land applied for its transfer to the Managing Officer of the Central Government. During the pendency of the aforesaid application, the land was again put for auction for June 4, 1969. However, on the application filed by the defendant, the auction was stayed by the Settlement Commissioner vide his order dated June 3, 1969. Ultimately, the appeal was accepted by the Settlement Commissioner vide order dated January 19, 1970 and it was directed that his application for transfer of land as a sub-lessee be disposed of according to the instructions. However, Rameshwari Dass was not impleaded as a party in the appeal or even in the proceedings of remand before the Managing Officer. Thereafter aforesaid Rameshwari Dass filed an application for finalisation of the sale in his favour in the light of the instructions issued by the Chief Settlement Commissioner exercising the powers of the Central Government to the effect that after satisfying the claim of the lessee or sub-lessee, the balance area may be offered to the so called defeated purchaser. This request of plaintiff-Rameshwari Dass was accepted and after he had deposited the entire amount, the Managing Officer issued the sale certificate in favour of the auction purchaser, namely, Rameshwari Dass on August 21, 1972. 6. Subsequently an objection was raised by Karam Chand with regard to the issuance of the sale certificate dated August 21, 1972 in favour of Rameshwari Dass. On the aforesaid objection Rameshwari Dass approached the department for issuing a conveyance deed instead of the sale certificate on the basis of transfer to him as per instructions issued by the Chief Settlement Commissioner under Rule 87 of the Rules. The Managing Officer vide his order dated December 19, 1977 directed that a conveyance deed be issued to Rameshwari Dass. The Managing Officer vide his order dated December 19, 1977 directed that a conveyance deed be issued to Rameshwari Dass. In the meantime, Rameshwari Dass sold the land in dispute in favour of Mehnga Ram. This sale was challenged by Karam Chand. Vide order dated September 3, 1981 this Court held that Mehnga Ram was not a bona fide purchaser 7. Thereafter Karam Chand preferred a revision petition before the Chief Settlement Commissioner against the finalisation of the sale of the land in dispute in favour of Rameshwari Dass. He maintained that during the pendency of the remand order dated January 19, 1970 passed by the Settlement Commissioner neither the sale certificate dated August 21, 1972 nor the conveyance deed dated December 19, 1977 could have been issued in favour of Rameshwari Dass. The Chief Settlement Commissioner accepted the revision petition filed by Karan Chand and remanded the case to the Tehsildar (Sales)- cum-Managing Officer to determine the eligibility of Karam Chand as a sub- lessee in compliance with the remand order dated January 19, 170 passed by the Settlement Commissioner. Since Rameshwari Dass had died, therefore, his legal representatives and aforesaid Mehnga Ram filed a petition under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 before the Central Government. It was contended by the aforesaid petitioners that neither aforesaid Karam Chand was eligible for transfer of the land in dispute as his continuous possession with effect from January 1, 1956 was not established nor Karam Chand was in possession of the land at the time of insertion of Chapter V-A of the Rules on November 26, 1960. It was also maintained by aforesaid petitioners that since a conveyance deed had been issued in favour of Rameshwari Dass on December 19, 1977 and Karam Chand had kept silent for a period of more than 5 years and it was only on May 20, 1983 that he had filed a revision petition before the Chief Settlement Commissioner, therefore, the said revision petition was barred by limitation and could not be entertained. 8. The Financial Commissioner (Revenue), exercising the powers of Central Government, heard the aforesaid revision petition filed by the legal representatives of Rameshwari Dass. 8. The Financial Commissioner (Revenue), exercising the powers of Central Government, heard the aforesaid revision petition filed by the legal representatives of Rameshwari Dass. After taking into consideration all the facts and circumstances of the case on the record, vide order dated August 18, 1987, it was held by the learned Financial Commissioner that the revision petition filed by Karam Chand was highly belated and no explanation has been given for the aforesaid delay. It was further held that aforesaid Karam Chand had also failed to approach the Managing Officer for several years to determine his eligibility for the transfer of the land as a sub-lessee. Another fact, which has been noticed by the learned Financial Commissioner was that subsequently the Honble Supreme Court of India vide a judgment reported as A.I.R. 1986 S.C. 2166 had upheld the sales conducted under the press note and as such no fault could be found with the auction conducted in favour of Rameshwari Dass. Additionally, according to the instructions issued by the Central Government under rule 87 of the Rules, the rights of a defeated auction purchaser like Rameshwari Dass had been upheld. Accordingly, the conveyance deed in favour of Rameshwari Dass was upheld and after the acceptance of the revision petition filed by his legal representatives, the order dated March 14, 1984 passed by the Chief Settlement Commissioner and order dated January 19, 1970 passed by the Settlement Commissioner were set aside. The conveyance deed dated December 19, 1977 in favour of Rameshwari Dass was upheld. 9. Karam Chand challenged the aforesaid order by filing a civil writ petition before this Court. The said civil writ petition was dismissed by this Court. Karam Chand took up the matter by way of a Special Leave Petition before the Honble Supreme Court of India. The leave was granted. The matter was registered as Civil Appeal No. 8723 of 1994. Vide judgment dated March 19, 2002, the aforesaid appeal filed by Karam Chand was dismissed. The order of the Financial Commissioner (Revenue) dated August 18, 1987 was upheld. 10. At this stage, it may be relevant to notice here that during the course of the pendency of the present appeal, two applications under Order 41 Rule 27 of the Code of Civil Procedure have been filed by the appellants for leading additional evidence. Through Civil Misc. 10. At this stage, it may be relevant to notice here that during the course of the pendency of the present appeal, two applications under Order 41 Rule 27 of the Code of Civil Procedure have been filed by the appellants for leading additional evidence. Through Civil Misc. application No. 3709-C of 1988, the appellants have sought to produce a copy of the order dated August 18, 1987 passed by the Financial Commissioner (Revenue). Through another application being CM No. 1011-C of 2003, a prayer has been made to produce on record a copy of the judgment dated March 19, 2002 passed by the Honble Supreme Court of India in Civil Appeal No. 8723 of 1994. Notice of the applications was issued to the respondents. The aforesaid applications were ordered to be heard along with the main appeal. 11. I have heard the learned counsel for the parties on the question of the prayer for additional evidence made by the appellants. Shri R.C. Setia, the learned senior counsel appearing for the appellants has fairly conceded that he has no objection if the aforesaid applications are allowed and the documents sought to be produced by the appellants by way of additional evidence are taken on record. Accordingly the prayer is allowed. The copy of order dated August 18, 1987 passed by the Financial Commission (Revenue) in Misc. Reh. No. 69 of 1983-84 is taken on record and is exhibited as Ex.CX. Similarly a copy of the order dated March 19, 2002 in Civil Appeal No. 8723 of 1994 passed by the Honble Supreme Court of India is taken on record and is exhibited as Ex.CY. 12. It may also be relevant to notice here that the facts as mentioned in detail in the preceding paragraphs of this order have been taken note from the pleadings of the parties as well as from the orders Ex.CX and CY. 13. I have heard Shri Ashwani Chopra, the learned senior counsel appearing for the appellants and Shri R.C. Setia, the learned senior counsel appearing for the respondent and with their assistance have also gone through the record of the case. 14. 13. I have heard Shri Ashwani Chopra, the learned senior counsel appearing for the appellants and Shri R.C. Setia, the learned senior counsel appearing for the respondent and with their assistance have also gone through the record of the case. 14. From the arguments raised by the learned counsel for the parties, the following substantial questions of law arise in the present appeal : (a) As to whether the judgments of the courts below in holding that the plaintiffs have failed to prove their ownership of the suit land are not legally sustainable being contrary to the record ? (b) As to whether the plaintiffs having approached the court seeking possession of the suit land on the basis of their title could be non-suited on the ground that they had failed to plead the conveyance deed dated December 19, 1977 ? (c) As to whether the judgments of the courts below can be held to be based upon the misleading and non-reading of important evidence and as such being judicially perverse are liable to be set aside? 15. Shri Ashwani Chopra, the learned senior counsel appearing for the appellants has vehemently argued that in fact the question of title of Rameshwari Dass (the original plaintiff) and subsequently of his legal representatives was duly upheld by the learned Financial Commissioner vide order dated August 18, 1987 (Ex.CX). The aforesaid order of the Financial Commissioner had been upheld by this Court in the writ petition and by the Apex Court vide order dated March 19, 2002 (Ex.CY). On the basis Shri Chopra maintains that the judgments of the Courts below were in fact liable to be set aside on this short ground alone in as much as once the title of the plaintiff stood proved, then the defendant being in unauthorised possession was liable to be dispossessed and the possession of the suit land was liable to be given to the plaintiffs. Shri Chopra has further argued that even in the original plaint filed by the plaintiff, suit for possession had been filed on the basis of the title. The title was claimed by the plaintiffs on the basis of sale certificate dated August 21, 1972. Shri Chopra has further argued that even in the original plaint filed by the plaintiff, suit for possession had been filed on the basis of the title. The title was claimed by the plaintiffs on the basis of sale certificate dated August 21, 1972. Shri Chopra maintained that even if the said sale certificate had been set aside, subsequently a conveyance deed had been issued in favour of Rameshwari Dass on December 19, 1977 and the aforesaid conveyance deed also related back to the claim of Rameshwari Dass being a defeated auction purchaser as per the instructions issued under rule 87 of the Rules. On that basis, Shri Chopra maintains that the learned courts below had committed an error in ruling out the aforesaid conveyance deed out of consideration and it is only on that ground that the suit filed by the plaintiff was dismissed. 16. On the other hand Shri R.C. Setia, the learned senior counsel appearing for the respondent has argued that the suit filed by the plaintiff was merely on the basis of a certificate of sale dated August 21, 1972. According to Shri Setia, the said sale certificate had been set aside subsequently in view of the auction being on the basis of the press note. According to Shri Setia even if subsequently Rameshwari Dass had acquired title on the basis of some instructions issued by the department and had been issued a deed of conveyance on the basis of a transfer in his favour being a defeated auction purchaser on December 19, 1977 the said conveyance deed was beyond the pleadings. According to Shri Setia no amount of evidence beyond the pleadings can be taken into consideration and as such suit filed by the plaintiff was rightly dismissed. 17. I have given my thoughtful consideration to the rival pleas raised on behalf of the parties. In my considered opinion, the controversy in the present appeal stands duly concluded by the order dated August 18, 1987 Ex.CX passed by the learned Financial Commissioner (Revenue) as well as the judgment of the Honble Supreme Court dated March 19, 2002 Ex.CY, the conveyance deed in favour of Rameshwari Dass and his legal representatives has been upheld. In my considered opinion, the controversy in the present appeal stands duly concluded by the order dated August 18, 1987 Ex.CX passed by the learned Financial Commissioner (Revenue) as well as the judgment of the Honble Supreme Court dated March 19, 2002 Ex.CY, the conveyance deed in favour of Rameshwari Dass and his legal representatives has been upheld. Not only this, it has also been held by the learned Financial Commissioner in Ex.CX that Karam Chand had no right to remain in possession since he had not been proved as a sub-lessee under the Rules. In fact the claim of defendant Karam Chand had been specifically rejected vis-a-vis the rights of Rameshwari Dass and his legal representatives. 18. Even otherwise, it is apparent that the present suit for possession had been filed by Rameshwari Dass originally and continued by his legal representatives. The said suit has been filed on the basis of title. The title was acquired by Rameshwari Dass originally under the sale certificate dated August 21, 1972. Subsequently, because of the decision rendered by this Court that all such auctions on the basis of the press note were illegal, instructions had been issued under rule 87 of the Rules by the Central Government that after satisfying the claim of the lessees or sub-lessees the balance area may be offered to the defeated purchaser. On the basis of the aforesaid instructions, the land in question was transferred in favour of Rameshwari Dass being a defeated auction purchaser and vide order dated December 19, 1977, a conveyance deed was also issued in his favour. The title conveyed to Rameshwari Dass or his legal representatives on December 19, 1977 in fact, for all practical purposes, would relate back to the date of the original auctions. It may also be pertinent to notice here that the Apex Court in its judgment reported as AIR 1986 S.C. 2166 reversed the view taken by this court and upheld the sales conducted under the press note. In view of the aforesaid fact, in either of the situations, i.e. either under the sale certificate dated August 21, 1972 or in view of the conveyance deed dated December 19, 1977, Rameshwari Dass and his legal representatives had acquired a valid titled to the land in dispute. In view of the aforesaid fact, in either of the situations, i.e. either under the sale certificate dated August 21, 1972 or in view of the conveyance deed dated December 19, 1977, Rameshwari Dass and his legal representatives had acquired a valid titled to the land in dispute. On the contrary, nothing has been shown by defendant Karam Chand that he had any right, title or interest to continue in possession of the land in dispute. 19. In view of the aforesaid facts, the answer to the questions (a), (b) and (c), as framed above, has necessarily to be given in favour of the present appellants. It is apparent that both the courts below have adopted an approach to reject the title of the plaintiffs which was not permissible in law. In view of the above discussion, I have no hesitation in allowing the present appeal. Accordingly, the judgment and decree of the learned courts below are set aside and the suit of the plaintiffs is decreed. There shall be no order as to costs. Appeal allowed.