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2003 DIGILAW 40 (PNJ)

Union Of India v. Nazar Singh

2003-01-10

R.L.ANAND

body2003
Judgment R.L.Anand, J. 1. This is a defendants appeal and has been directed against the judgment and decree dated 10.12.1979, passed by the Court of learned District Judge, Bhatinda, who, dismissed the appeal of Union of India by affirming the judgment and decree dated 30.1.1975 passed by the Court of Sub Judge, 1st Class, Bhatinda who had decreed the suit of the plaintiffs S/Shri Nazir Singh, Nagar Singh and Gurcharan Singh and granted a decree for declaration that the plaintiffs are the owners of the suit land being a bona fide purchasers for valuable consideration from Shri Hansa Singh and a decree for permanent injunction was also passed against the defendant-appellants directing them not to interfere in the possession of the plaintiffs who have become the owners of the suit land. 2. The brief facts of the case are that Hansa Singh son of KaJa Singh son of Bogha Singh purchased the suit land for a sum of Rs. 6000/- in a public auction from Government of India through Tehsildar (Sales) on 2.1.1965 and the area purchased was 71 kanals 10 marlas fully described in the Head Note of the plaint and entered as per jamabandi for the year 1964-65, situated in village Jai Singh Wala Tehsil and District Bhatinda. The entire sale consideration was paid to the Rehabilitation Department as a result of which Shri Hansa Singh became the full fledged owner. Mutation of the land purchased was also effected and sanctioned in his favour by the Collector on 1.10.1966. Subsequently, Hansa Singh sold the land to the plaintiffs for a sum of Rs. 10,000/- vide sale deed dated 12.2.69 and a mutation of this land was also sanctioned in favour of the plaintiffs on 26.9.69. It is the case of the plaintiffs that they are the owners and in possession of this land with effect from 17.2.69 on the basis of the sale deed Ex.P.1 and that the defendants are trying to interfere in the possession of the plaintiffs without any right, title or interest. So much so the plaintiffs served a legal notice upon the defendants on 18.2.1971 under Section 80 C.P.C. 3. The suit was contested by the defendants. Firstly an objection was taken through an application that there existed an arbitration clause between Hansa Singh and the Government and, therefore the proceedings of the civil suit may be stayed. So much so the plaintiffs served a legal notice upon the defendants on 18.2.1971 under Section 80 C.P.C. 3. The suit was contested by the defendants. Firstly an objection was taken through an application that there existed an arbitration clause between Hansa Singh and the Government and, therefore the proceedings of the civil suit may be stayed. This application under Section 34 of the Indian Arbitration Act 1940 moved by the defendants was dismissed on 2.1.1974. On merits, the objection of the defendants is that the suit of the plaintiff is not legally maintainable because the suit land acquired was evacuee property and that the civil Court had no jurisdiction to try the suit by virtue of Section 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was also pleaded by the defendants that Hansa Singh was a Hanjan and the land was sold in his favour by way of restricted auction and under the terms of the agreement Shri Hansa Singh could not sell/transfer or mortgage the suit land up to 10 years from the date of sale in his favour or till the payment of the loan secured by him is made. In case of the breach, the State Government was competent and empowered to resume the land and forfeit the sale price. The defendants admitted that Hansa Singh had paid the entire amount of the sale consideration and that the mutation of the sale has been sanctioned in his favour but he sold the land to the plaintiffs under the sale deed dated 17.2.1969 before the expiry of ten years. The plaintiffs though are in possession of the suit land but they are in unauthorised possession, therefore, their suit should be dismissed. 4. The plaintiffs filed replication in which they reiterated their averments taken in the plaint by denying those of the written statement and from the pleadings of the parties the learned trial Court framed the following issues: 1. Whether the plaintiffs are bona fide purchasers of suit land from Shri Hansa Singh ostensible owner for a consideration under a registered sale deed dated 17.2.1969? 2. Whether Hansa Singh was not competent to sell the suit land to plaintiffs? OPD 3. Whether the jurisdiction of civil Courts is expressly barred under Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954? OPD 4. 2. Whether Hansa Singh was not competent to sell the suit land to plaintiffs? OPD 3. Whether the jurisdiction of civil Courts is expressly barred under Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954? OPD 4. Whether notice under Section 80 CPC served on defendants is invalid? OPD 5. Relief. 5. The parties led oral as well as documentary evidence in support of their case and finally vide judgment and decree dated 30.1.1975 the suit of the plaintiff was decreed by the trial Court. The defendants filed an appeal against the judgment and decree of the learned trial Court in the Court of District Judge, Bhatinda who vide the impugned judgment and decree dated 10.12.1979 dismissed the appeal of Union of India. After losing the litigation in both the Courts below, the present Regular Second Appeal has been filed by the defendant-appellants. 6. I have heard Shri G.S. Gill, Learned Senior D.A.G. Punjab, appearing on behalf of the appellant and Shri J.R. Mittal, learned senior counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case. 7. Before, I deal with the submission raised by the counsel for the parties, it will be appropriate for me to reproduce paras No. 5 to 8 of the judgment dated 10.12.1997, passed by the first appellate Court, which are as under;- 5. While arguing the appeal, the learned Government Pleader has vehemently contended that sale in plaintiffs favour being in contravention of the conditions to which the sale in Hansa Singhs favour was subject it was legally open to the Chief Settlement Commissioner to resume the land cancelling the sale in Hansa Singhs favour and this having been done the plaintiffs title, who had merely stepped into shoes of Hans Singh, became non-existent. Competency of the Chief Settlement Commissioners to resume land in view of the aforesaid conditions of the sale is not open to criticism. The trouble, however, is that there is no material on the file to indicate that the Chief Settlement Commissioner did ever pass an order directing the resumption of the suit land or cancelling the sale in Hansa Singhs favour what to speak of the certified copy of the order being filed, which was otherwise essential, even the lone witness examined by the defendants expressed his awareness as to any such order being passed. The contention raised by the learned Govt. Pleader, therefore, that such an order was, in fact, passed is without any basis and it cannot be countenanced. 6. This would leave over the question whether Hansa Singh could legally sell away the land before the expiry of ten years period. The condition incorporated in the agreement of sale merely says that in the event of such a sale, the Government was empowered to resume the land to forfeit the amount paid by the purchaser; and no more. It does not say that the sale, if effected, would be illegal. Under the sale, Hansa Singh came to acquire the proprietary interests in respect of the said land and under the general law he could validly sell away such interests in the land to any one he liked, but subject to the aforesaid conditions incorporated in the agreement of sale. There being, as already observed no indication that the Government ever chose to resume the land, sale in plaintiffs favour would remain intact, the finding of the learned Sub Judge on issue Nos. 1 and 2 thus perfectly correct and are not open to any valid criticism. 7. As regards the jurisdiction of the civil Court to try the suit it would have become relevant only if the Chief Settlement Commissioners order has been placed on the file because in that case it could have been validly argued that in view of Sections 27 and 36 of the Displaced Persons (C&R) Act. 1954, the Civil Court had no jurisdiction to assail the legality of that order. That order being not produced, both Sections 27 and 36 would drop, out of the case. The findings of the lower Court on issue No. 3 is again affirmed. 8. As regards the last contention put forward by the learned Government Pleader, that no finding was given by the lower Court on issue No. 4, it may well be observed that the onus probandi in regard to issue No. 4 was on the defendants witness that no valid notice under Section 80 C.P.C. was given to the defendants. The issue any way should have been decided against the defendants, for want of any evidence. Failure of the lower Court to render any finding on the issue would not, therefore, lead to any material. 8. The issue any way should have been decided against the defendants, for want of any evidence. Failure of the lower Court to render any finding on the issue would not, therefore, lead to any material. 8. The learned counsel appearing on behalf of the appellants submitted that as Hansa Singh has committed the breach of the terms of the agreement of sale, therefore, the Chief Settlement Commissioner/Government had the power to cancel the sale in favour of Hansa Singh and they were further authorised to resume the land. The plaintiffs have stepped up in the shoes of Hansa and, therefore, they cannot derive a valid title. 9. On the contrary, it was submitted by the counsel for the respondents that it was the primary duty of the department to place on record the order of the Chief Settlement Commissioner in order to show that on what ground he had passed the order of resumption and secondly the plaintiffs are the bona fide purchasers of the land. On the basis of the sale deed executed in favour of Hansa Singh, the mutation has been sanctioned in his favour. In the revenue record, the name of Hansa Singh figured as owner and if the plaintiffs have purchased the land in a bona fide manner for consideration from Hansa Singh, the order of resumption by the Government cannot be passed at the back of the plaintiffs who have become the owners by virtue of the sale deed executed in their favour by Hansa Singh and also on the basis of their established possession. 10. After considering the rival contentions of the parties. I am of the opinion that this appeal must fail. The case set up by the defendants in the trial Court was that the Government of India through its Chief Settlement Commissioner had resumed the land but unfortunately the defendants have not placed on record any copy of the order to show that on what grounds the resumption order was passed. Secondly it is the admitted case of the defendants that the mutation was sanctioned in favour of Shri Hansa Singh and his name also figured in the revenue proceedings. Secondly it is the admitted case of the defendants that the mutation was sanctioned in favour of Shri Hansa Singh and his name also figured in the revenue proceedings. In these circumstances, it was open to Shri Hansa Singh to sell the land and if the plaintiffs have acted in a bona fide manner for consideration in the purchase of the land from Hansa Singh they cannot be allowed to suffer. 11. Let us further examine what were the conditions of sale incorporated in favour of Hansa Singh. As per the conditions incorporated in the agreement of sale, it was merely stated that in the event of such a sale the Government was empowered to resume the land and to forfeit the amount paid by the purchaser. It does not say specifically that if the allottee transfers the land, that would also be considered as illegal. The copy of the order passed by the Government with regard to the resumption of the land has not been placed on record. Therefore, we will be in a guess whether the land was ever re sumed and if so on what ground. As the plaintiffs are the bona fide purchasers of the land in question and that Shri Hansa Singh had become the owner of the land in dispute and that the proprietary rights had already been transferred in favour of Hansa Singh, therefore, I am of the opinion that there is no merit in this appeal and by affirming the judgment and decree of the Courts below, the appeal of the Government of India is hereby dismissed. There shall be no order as to costs.