JUDGMENT Mr. L.N. Mittal, J. (Oral).- CM No. 1262.C of 2011 For the reasons mentioned in the application, which is accompanied by affidavit, delay of 4 days in filing the appeal is condoned. RSA No. 468 of 2011 2. Plaintiffs Lal Chand etc. having partly failed in both the courts below are in second appeal. 3. Plaintiffs alleged that they are owners in possession of the suit land measuring 8 kanals since the year 1970 on the basis of family settlement which was affirmed in their favour vide consent decree dated 16.8.1972 passed against their grand-father Rati Ram. Defendants have no concern with ownership and possession of the suit land but they threatened the plaintiffs to dispossess them therefrom. Plaintiffs also claimed title over the suit land by adverse possession. Order dated 26.10.1960 passed by Collector Agrarian, Sonepat declaring 77 kanals 8 marlas land of plaintiffs’ grand-father Rati Ram as surplus was set aside by Financial Commissioner, Haryana vide order dated 18.8.1979 and the matter was remanded to the Collector Agrarian who vide order dated 13.9.1982 declared only 16 kanals land as surplus and also declared land of killa no. 2/21 as old tenant’s area. However, prior to it, plaintiffs’ grand-father had died and the suit land had not been utilized and therefore, surplus land was to be determined afresh. Subsequent mutation no. 1560 sanctioned on 16.3.1981 in favour of State of Haryana defendant no. 4 is therefore, null and void. Plaintiffs’ grand-father had sold suit land with some other land to Ganga Ram and Chander Kanta for which mutation no. 1477 was sanctioned vide order dated 29.9.1970 but later on Rati Ram exchanged the suit land with Ganga Ram etc. with other 8 kanals land and mutation no. 1502 regarding exchange was sanctioned on 3.7.1972. Thus, plaintiffs are in continuous, hostile and open possession of the suit land. Accordingly, plaintiffs sought declaration that they are owners in possession of the suit land measuring 8 kanals. with other 8 kanals land and mutation no. 1502 regarding exchange was sanctioned on 3.7.1972. Thus, plaintiffs are in continuous, hostile and open possession of the suit land. Accordingly, plaintiffs sought declaration that they are owners in possession of the suit land measuring 8 kanals. They also sought declaration that order dated 26.10.1960 passed by Collector Agrarian, order dated 17.3.1978 passed by Commissioner, order dated 18.8.1979 passed by Financial Commissioner and order dated 13.9.1982 passed by Collector Agrarian, Sonepat and subsequent mutations are null and void and do not pass any right, title or interest in favour of the defendants and all proceedings regarding utilization of the suit land and mutations and orders in favour of defendants including all proceedings of surplus area be set aside and defendants have no right, title or interest in the suit land. Permanent injunction restraining defendants from interfering with possession of the plaintiffs over the suit land was also claimed. 4. Defendants no. 1 to 3 broadly controverted plaint allegations. It was pleaded that defendants no. 1 to 3 are owners of the suit land which was allotted to them by defendant no. 4 - State of Haryana vide order dated 7.10.1976. However, it was admitted that plaintiffs are presently in possession of the suit land. Consent decree dated 16.8.1972 suffered in favour of the plaintiffs by their grand-father Rati Ram is untenable in law. Rati Ram was big land-owner. His land including suit land was declared surplus vide order dated 26.10.1960 passed by Collector Agrarian. Out of the surplus land, land measuring 06 kanals 6 marlas including the suit land measuring 8 kanals was allotted to defendants no. 1 to 3 vide order dated 7.10.1976. After the allotment of land, possession of land measuring 8 kanals 16 marlas was delivered to defendants no. 1 to 3 vide rapatrojnamcha Patwari No. 485 dated 26.6.1984 whereas possession of the remaining allotted suit land measuring 8 kanals was deferred at that time as it did not have any access (passage) to it. Accordingly, defendants no. 1 to 3 being allottees and owners of the suit land are entitled to have possession thereof from the plaintiffs. 1 to 3 vide rapatrojnamcha Patwari No. 485 dated 26.6.1984 whereas possession of the remaining allotted suit land measuring 8 kanals was deferred at that time as it did not have any access (passage) to it. Accordingly, defendants no. 1 to 3 being allottees and owners of the suit land are entitled to have possession thereof from the plaintiffs. After declaration of the suit land as surplus, Rati Ram was left with no right, title or interest and consequently, consent decree suffered by Rati Ram in favour of the plaintiffs and the resultant mutation do not confer any right, title or interest on the plaintiffs in the suit land. All proceedings of surplus area and allotment of suit land to defendants no. 1 to 3 are legal and binding on all concerned. Order dated 26.10.1960 declaring suit land as surplus has attained finality and was never set aside. Various other objections were also raised. 5. Defendant no. 4 – State of Haryana also broadly took the same stand as that of defendants no. 1 to 3. 6. Learned Additional Civil Judge (Senior Division), Ganaur vide judgment and decree dated 21.10.2009 partly decreed the suit for permanent injunction only restraining the defendants from taking possession of the suit land from the plaintiffs except in due course of law (because possession of the plaintiffs over the suit land stood admitted even by the defendants). However, relief regarding declaration sought by the plaintiffs has been declined. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 21.10.2010. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. 7. I have heard learned counsel for the appellants and perused the case file. 8. It has been admitted even by the plaintiffs/appellants themselves that suit land and some other land was declared surplus in the hands of plaintiffs’ grand-father Rati Ram vide order dated 26.10.1960 passed under Punjab Security of Land Tenures Act, 1953 (in short, the Tenures Act). Thereafter on coming into force of the Haryana Ceiling of Land Holdings Act, 1972 (in short, the Ceiling Act), the surplus land vested in State of Haryana with effect from the appointed day i.e. 24.1.1971. Consequently, consent decree dated 16.8.1972 suffered by big land owner Rati Ram in favour of his grand-sons i.e. plaintiffs is null and void and has no effect on the surplus area. Consequently, consent decree dated 16.8.1972 suffered by big land owner Rati Ram in favour of his grand-sons i.e. plaintiffs is null and void and has no effect on the surplus area. On the contrary, the suit land along with other land was allotted to defendants no. 1 to 3 vide order dated 7.10.1976 and therefore, the plaintiffs have no right, title or interest in the suit land. 9. Learned counsel for the appellants vehemently contended that order dated 26.10.1960 passed by Collector Agrarian declaring suit land and other land of Rati Ram to be surplus was set aside by Financial Commissioner vide order dated 18.8.1979 but the said order of Financial Commissioner and subsequent order dated 13.9.1982 passed by the Collector Agrarian after remand could not be produced in evidence as relevant record was not traceable. The contention is devoid of merit. Report dated 8.9.2009 made by official from the record room of Deputy Commissioner, Sonepat was produced to the effect that the file containing order dated 26.10.1960 and order dated 13.9.1982 was not traceable and was allegedly being searched. However, there is no evidence on record to depict that relevant file of the Financial Commissioner in which order dated 18.8.1979 was passed, setting aside order dated 26.10.1960 of the Collector and remanding the case to Collector for fresh determination of surplus area of Rati Ram, is also missing or is not traceable. However, even the said order has not been produced on record. In fact, there is no material on record to depict that order dated 26.10.1960 passed by the Collector Agrarian declaring 77 kanals 8 marlas land of Rati Ram including the suit land as surplus has ever been set aside. Consequently, the aforesaid contention raised by the counsel for the appellants cannot be accepted. 10. Learned counsel for the appellants also contended that Rati Ram died on 29.10.1979 and thereafter surplus area of heirs of Rati Ram should have been determined afresh. The contention is completely misconceived and devoid of substance. Before death of Rati Ram, his surplus land had already vested in State of Haryana on coming into force of Ceiling Act with effect from 24.1.1971. Not only that, the suit land had also been utilized by allotting the same to defendants no. 1 to 3 vide order dated 7.10.1976 i.e. long before the death of Rati Ram. Before death of Rati Ram, his surplus land had already vested in State of Haryana on coming into force of Ceiling Act with effect from 24.1.1971. Not only that, the suit land had also been utilized by allotting the same to defendants no. 1 to 3 vide order dated 7.10.1976 i.e. long before the death of Rati Ram. Consequently, there was no occasion for determining afresh the surplus area of heirs of Rati Ram after his death. Thus, examined from any angle, it is manifest that plaintiffs have miserably failed to prove their case and they have been rightly nonsuited by the courts below. Concurrent finding recorded by the courts below is justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. -----------0.N.K.0-----------