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2006 DIGILAW 4348 (PNJ)

Ved Parkash v. Vijay Singh

2006-11-14

HEMANT GUPTA

body2006
JUDGMENT Hemant Gupta, J. - The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for declaration that the plaintiff is owner of the suit land was decreed in appeal. 2. It is the case of the plaintiff that land measuring 5 kanals was owned by one Kuldeep Singh but Sheotaj Singh, predecessor-in-interest of the plaintiff, was in possession of the said land as tenant. The land was declared surplus in the hands of Kuldeep Singh which was challenged by Sheotaj Singh before the civil Court by way of suit for declaration. The said suit was decreed. The plaintiff and defendants No. 8 and 9 obtained ownership rights in the said property but defendant No. 1 had alienated the suit property in favour of defendants No. 2 to 7 by way of registered sale deed fraudulently and defendant No. 1 has no right, title or interest to alienate the suit property. It was the stand of the defendants that after the land was declared surplus, the land was allotted to defendant No. 1 and suit property in favour of defendants No. 2 to 7 by way of registered sale deed fraudulently and defendant No. 1 has no right, title or interest to alienate the suit property. It was the stand of the defendants that after the land was declared surplus, the land was allotted to defendant No. 1 and thereafter the said property has been sold by defendant No. 1 to defendants No. 2 to 7 by way of registered sale deed dated 31.08.1999 and, thus, prayed that the suit is dismissed. 3. The learned trial Court dismissed the suit but the learned first Appellate Court reversed the findings recorded by the learned trial Court and decreed the suit. It was held that allotment of land to Chander Bhan defendant No.1 was cancelled on 24.06.1986 vide order Exhibit PZ and a previous suit for injunction filed by Sheotaj Singh, predecessor-in-interest of the plaintiff was decreed on 8.9.1987 vide decree Exhibit PX. The appeal against the said judgment was dismissed on 21.01.1992 vide judgment Exhibit PY. In the said judgment, it was found that allotment in favour of defendant No. 1 was cancelled and the suit land was taken out of the surplus pool and given to the plaintiff as tenants permissible area. The appeal against the said judgment was dismissed on 21.01.1992 vide judgment Exhibit PY. In the said judgment, it was found that allotment in favour of defendant No. 1 was cancelled and the suit land was taken out of the surplus pool and given to the plaintiff as tenants permissible area. The cancellation of allotment in favour of defendants No. 1 to 4 was found to be legal vide order dated 24.06.1986 and consequently it was found that the plaintiff is owner of the suit land as successor-in-interest of Sheotaj Singh. 4. Learned counsel for the appellant has vehemently argued that the order dated 24.06.1986 Exhibit PZ was passed by the Prescribed Authority without giving any notice to the appellant and, thus, such order cannot form legal basis of cancellation of allotment in favour of their predecessor-in-interest. It was also argued that the previous suit decreed on 8.9.1987 was simpliciter suit for injunction and, therefore, question of title could not be gone into the said suit and any finding recorded therein cannot operate as res judicata in the present suit for declaration. Reliance was placed upon Gram Panchayat of Village Naulakha v. Ujagar Singh and others, AIR 2000 SC 3272. 5. A perusal of the judgment Exhibit PY shows that Issues No. 2, 3 and 4 were framed as under : 2. Whether the suit land forms part of surplus land and had vested in the State Government of Haryana, if so, to what effect ? OPD 3. Whether the suit land has been allotted to the defendants No. 1 to 4 and they have become owners in possession of the same ? OPD 4. I issue No. 3 is proved, whether the said allotment in favour of defendants No. 1 and 4 is void, illegal and without any jurisdiction and not binding on the rights of the plaintiff and defendants No. 1 to 4 ? OPP In the said judgment, it was found that Sheotaj Singh was in possession of the land since 1950-51 and the allotment in favour of defendants No. 1 to 4 was cancelled vide order dated 24.6.1986 and the land was allotted to the plaintiff. The Court also considered the objection that no notice was given to the defendants before their allotment was cancelled. The Court also considered the objection that no notice was given to the defendants before their allotment was cancelled. The said argument was considered and found that DW 10 Ram Avtar has deposed that the appeal against the order was pending before Deputy Commissioner, Narnaul but fate of the said appeal was not known. Since the said order has not been challenged in any proceedings, it was held that suit of the plaintiff can be decided on the basis of possessor rights only. In any case, the validity of the order dated 24.06.1986, was pressed into by the plaintiff in the said suit and resisted by the defendants. Finding has been returned against the defendants, therefore, in the subsequent suit, the validity of the said order cannot be made an issue. 6. The argument that it was a suit for injunction and the finding on the question of title would not operate as res judicata is not tenable in law, In the judgment referred to by learned counsel for the appellant, it was found that no question of title was gone into or decided. Reference was made therein to another judgment reported as Sajjadanashin Sayed v. Musa Dadabhai Ummer, AIR 2000 SC 1238 wherein it was held that incidental finding on title will not be binding in a suit.However, in the present case, there were specific issues framed regarding the suit land forming part of the surplus land and whether the cancellation of allotment in favour of defendants No. 1 to 4 is legal and valid. Once specific issues were framed and the Court has given finding on the said issues, the decision on such issues will operate as res judicata. Therefore, I do not find any patent illegality or material irregularity in the finding recorded that allotment in favour of defendant No. 1 stand validly cancelled. 7. Learned counsel for the appellant raised another argument that jurisdiction of the civil Court is barred in terms of Section 26 of the Haryana Ceiling of Land Holding Act, 1973. However, said argument is not available to the appellant inasmuch as the plaintiff has not sought to enforce any right under the aforesaid Act. 7. Learned counsel for the appellant raised another argument that jurisdiction of the civil Court is barred in terms of Section 26 of the Haryana Ceiling of Land Holding Act, 1973. However, said argument is not available to the appellant inasmuch as the plaintiff has not sought to enforce any right under the aforesaid Act. It is the case of the plaintiff that rights under the aforesaid Act stand crystallized with the cancellation of allotment in favour of defendant No. 1 on 24.06.1986 and thereafter it is the plaintiff who is the owner of the suit land and, thus, entitled to declaration thereof. In other words, the claim of the plaintiff is after the proceedings under the Act have attained finality. Therefore, I do not find that the said argument is tenable. Consequently, I do not find that any substantial question of law arises for consideration of this Court in second appeal. Dismissed. Appeal dismissed.