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2009 DIGILAW 1365 (PNJ)

Ganga Singh v. State of Haryana

2009-08-10

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J.:- This Regular Second Appeal is directed against the judgment and decree dated 28.05.2008, rendered by the Court of District Judge, Jind, vide which it partly accepted the appeal against the judgment and decree dated 23.04.2007, rendered by the Court of Additional Civil Judge (Senior Division), Jind. 2. Shorn off unnecessary details, the relevant facts of the case, are that the Government of Haryana decided to auction the land of abandoned canals/water courses. On 21.08.2001, the defendants sold 0.3125 acres of land, in open auction and the plaintiff (now appellant) was the highest bidder. The land was sold in the sum of Rs.62,656/-. 25% of the auction money amounting to Rs.16,000/- was deposited by the plaintiff at the spot. On 11.03.2002, defendant no.3 served a notice, upon the plaintiff, for deposit of the remaining amount i.e. Rs.46,656/- upto 28.03.2002. Lateron, the said period was extended upto 30.05.2002. The plaintiff deposited an amount of Rs.46,656/- on 30.05.2002, with defendant no.3, who issued receipt, in that regard. It was further stated that the plaintiff requested the defendants to execute the conveyance deed, in respect of the property, purchased by him, in the auction aforesaid, but to no avail. It was further stated that the defendants executed sale deed in favour of one Vijay Singh son of Singh Ram, r/o Mando Kheri. Consequently, a notice under Section 80 of the Code of Civil Procedure was served upon the defendants. Even after the receipt of the said notice, the defendants did not execute the conveyance deed of the land, aforesaid, in favour of the plaintiff. They also refused to refund the amount of Rs.62,656/- alongwith interest. Left with no alternative, a suit for mandatory injunction was filed. 3. The defendants put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiff had neither cause of action, nor locus standi to file the suit; that the requisite fee had not been affixed; and that the plaintiff had not come to the Court with clean hands. It was stated that the auction of the aforesaid land on 21.08.2001 was held and the plaintiff was the highest bidder. It was further stated that the plaintiff deposited 25% of the auction amount, at the spot, and lateron the remaining amount was deposited on 30.05.2002. It was stated that the auction of the aforesaid land on 21.08.2001 was held and the plaintiff was the highest bidder. It was further stated that the plaintiff deposited 25% of the auction amount, at the spot, and lateron the remaining amount was deposited on 30.05.2002. It was further stated that the Financial Commissioner and Secretary to Government Haryana, (Coordination Department and Special Cell) for proper utilization of Government property, vide its memo No.1/13/2002-Spl. Cell (Coord) dated 23.06.2003, (Annexure D-1), cancelled the auction of surplus land of village Manoharpur and Mando Kheri and directed that the amount of auction, which was deposited by the purchasers, be returned to them. It was further stated that on receipt of necessary sanction from the competent authority, the defendants would refund the amount, paid by the plaintiff. It was further stated that as per the terms and conditions, announced at the time of auction orally, the competent authority was vested with a right to accept or reject the auction. The remaining averments, contained in the plaint, were also denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether the plaintiff is entitled to the relief of mandatory injunction on the grounds mentioned in the plaint ?OPP 2- Whether the plaintiff has got no caue of action and locus standi to file the present suit ?OPD 3- Whether the suit is not maintainable in the present form ?OPD 4- Whether the suit is false and frivolous and is liable to be dismissed with costs as alleged ?OPD 5- Whether the plaintiff has concealed the material facts from the Court, if so, its effect ?OPD 6- Whether suit is bad for want of advalorum Court fees ?OPD 7- Whether civil Court has no jurisdiction to try and decide the present suit ?OPD 8- Whether the suit is bad for want of notice under Section 80 CPC ?OPD 9- Relief.” 5. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit for mandatory injunction, directing defendant no.1 to execute the conveyance deed, in favour of the plaintiff. 6. Feeling aggrieved, an appeal was preferred by the defendants/appellants, which was partly accepted, as stated above. 7. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit for mandatory injunction, directing defendant no.1 to execute the conveyance deed, in favour of the plaintiff. 6. Feeling aggrieved, an appeal was preferred by the defendants/appellants, which was partly accepted, as stated above. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through the records of the case, carefully. 9. The Counsel for the appellant, submitted that once the appellant was the highest bidder, in the auction, which was held on 21.08.2001 and deposited the amount, in question, the defendants were bound to execute the conveyance deed , in his favour. He further submitted that the sale/auction was cancelled by the defendants (now respondents) without issuance of any notice to the plaintiff to put forth his version. He further submitted that, under these circumstances, the plaintiff (now appellant) was entitled to the mandatory injunction, directing the defendants to execute the conveyance deed, in his favour, in respect of the property, in dispute, purchased by him, in the open auction. He further submitted that the judgment and decree of the First Appellate Court, partly accepting the appeal whereby the relief of execution of conveyance deed was denied to the plaintiff, being illegal, was liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that the auction, which was held on 21.08.2001, in which the plaintiff (now appellant) was the highest bidder, was never confirmed by the competent authority. She further submitted that, as per the terms and conditions of the auction, which were announced orally at the spot, the competent authority was vested with the right to cancel the auction, without assigning any reason. She further submitted that the auction was cancelled by the Financial Commissioner and Secretary to Government Haryana, (Coordination Department and Special Cell), as the land, which was auctioned, formed part of the protected forest area and could not be sold. She further submitted that, as such, the judgment and decree of the First Appellate Court, partly accepting the appeal, whereby the relief of execution of the conveyance deed, in favour of the plaintiff (now appellant) was denied, being correct, is liable to be upheld. 11. She further submitted that, as such, the judgment and decree of the First Appellate Court, partly accepting the appeal, whereby the relief of execution of the conveyance deed, in favour of the plaintiff (now appellant) was denied, being correct, is liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others [2006(2) LAW HERALD (SC) 1414] : (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. It is evident from para no.16 of the judgment of the First Appellate Court, that before the sale deed could be executed. in favour of the plaintiff, the Deputy Commissioner Jind, wrote a letter dated 16.05.2003 to the Commissioner and Secretary to Government of Haryana, (Coordination Department and Special Cell) informing that notwithstanding the approval of auction, having been received, from the Irrigation Department, vide their letter dated 06.02.2002, yet the land auctioned, was covered under the protected forest area and could not be sold. It was under these circumstances,that the Deputy Commissioner, Jind, informed the competent authority that the auction of the land, be cancelled and the amount be returned. This letter, was sent by the Commissioner and Secretary to Government of Haryana (Coordination Department and Special Cell) to the Engineer-in-chief, Irrigation Department, Haryana, Panchkula on 23.06.2003, copy whereof Ex.DW1/A. It was under these circumstances, that the auction was cancelled. This letter, was sent by the Commissioner and Secretary to Government of Haryana (Coordination Department and Special Cell) to the Engineer-in-chief, Irrigation Department, Haryana, Panchkula on 23.06.2003, copy whereof Ex.DW1/A. It was under these circumstances, that the auction was cancelled. The first Appellate Court, in my considered opinion, was right that even if the sale deed had been executed, in favour of the plaintiff,and, lateron, it had been discovered that the land formed part of the protected forest area, and could not be sold, no ownership right in the plaintiff could vest. The first Appellate Court was, thus, right in holding that, in these circumstances, when the facts were apparent, on record, that the land, in dispute, formed part of the protected forest area, and could not be sold there was no necessity of issuance of notice before cancelling the auction. Under these circumstances, the first Appellate Court was right in holding that the plaintiff could not be granted the relief of mandatory injunction directing the defendants to execute the conveyance deed, in his favour, on the basis of the auction, referred to above, and was only entitled to the recovery of amount with interest. The first Appellate Court was also right in holding that the case of Vijay Singh, did not present parity with the case of the plaintiff. The findings of facts, recorded by the First Appellate Court, on the aforesaid points, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference of this Court. The judgment and decree of the First Appellate Court, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. --------------