Amar Nath vs The Financial Commissioner, Taxation, Punjab and others

S.P. Goyal, J.—This petition under Articles 226 and 227 of the Constitution of India was referred by me to a larger Bench because the binding nature of the judgment of Tewatia, J. in Regular Second Appeal No. 1143 of 1968 (Gurdit Singh v. The Union of India) decided on May 21st, 1970, was challenged by the learned counsel for respondent No. 5 Gurdit Singh.

This case has a long and chequered history and the facts leading to this petition are that on June 29th, 1955, evacuee property No. W.D. 6 situate in Bazar Sheikhan, Jullundur, was auctioned in favour of the petitioner and his father, Lachhman Dass (since deceased) for a sum of Rs. 45,700/- and the auction confirmed on October 30th, 1956. As a result of the said auction, the District Rent and Managing Officer, Jullundur, served a notice (Annexure P-2) on the allottees in occupation of the said property, including respondent No. 5, informing them that in view of the transfer of the said property in favour of the petitioner, their allotment stood cancelled and that they should attorn in favour of the petitioner and pay rent to him with effect from October 30th, 1956. On receipt of this notice, respondent No. 5 filed an appeal before the Deputy Chief Settlement Commissioner, New Delhi, on the ground that the room in his possession was a separate entity bearing No. W.B. 6 wherein he was running his business. His plea was, however, declined and the appeal filed by him dismissed by the Deputy Chief Settlement Commissioner vide order dated July 12th, 1958 (Annexure P4). Still dissatisfied, he filed a revision petition before the Chief Settlement Commissioner, New Delhi, which was also dismissed vide order dated July 20th, 1960 (Annexure P.5) by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner. Thereafter, the sale certificate was issued in favour of the petitioner and his father on December 21, 1961, wherein the boundaries of property No. W.D. 6 were given as under:--

East : Rainak Bazar.

West : Street & W.D. 7.

North: Street.

South: Mosque & W.D. 5.

The petitioner, after securing the sale certificate in his favour, moved an application in the Court of the Rent Controller for ejectment of respondent No. 5 on the ground of user and vide order dated March 19, 1964, it was held that the relationship of landlord and tenant sub-sifted between the parties but the application was dismissed because the petitioner failed to substantiate the ground of conversion of user. The petitioner again moved an application on April 15, 1964, for the ejectment of respondent No. 5 on the ground of non-payment of the rent. The Rent Controller, Jullundur, vide judgment dated January 28, 1966 (Annexure P-12) again held that the relationship of landlord and tenant subsisted between the parties. After having failed before the Rehabilitation Authorities and the Rent Controller, respondent No. 5 filed a regular suit in the Court of Sub-Judge 1st Class, Jullundur, against the petitioner and the Union of India for a declaration that shop No. W.B. 6 was not a part of property No. P.W. 6 and he was still a tenant under the Central Government. Hist suit was dismissed by the trial Court with the finding that the Civil Court had no jurisdiction to entertain the suit. The first appeal against that judgment was dismissed by the learned Additional District Judge vide judgment dated November 12, 1968 (Annexure P-14) and the second appeal by Tewatia, J., vide judgment dated May 21, 1970 (Annexure P 15).

The petitioner for the third time moved an ejectment application against respondent No. 5 seeking his ejectment on various grounds which was allowed vide order dated March 16, 1971 (Annexure P-16). The appeal filed against the order of ejectment was dismissed by the Appellate Authority vide judgment dated November 13, 1972 (Annexure P-17) and the revision petition filed against that judgment--Civil Revision No. 1296 of 1972--is alleged to be still pending in this Court.

During the pendency of the ejectment proceedings, respondent No. 5, it is alleged in the petition, sublet the shop in question on April 1, 1971, to Sarvesh Kumar, Sohal son of D. Sohal who was at that time posted as Settlement Officer, Rehabilitation Department, Jullundur, on a monthly rent of Rs. 300/-. The petition further proceeds that by exercising his influence in the department, D.R. Sohal got suo motu reference made u/s 33 of the Displaced Persons (Compensation, and Rehabilitation) Act, 1954, by respondent No 4. The Assistant Settlement Officer-cum-Managing Officer made the report that the sale certificate be amended so as to exclude property No. W.B. 6 but the Chief Settlement Commissioner referred the case back for its examination by the Assistant Settlement Officer (A) who also reiterated that the shop W.B. 6 was a separate entity and, therefore, should be excluded from the sale certificate. The recommendation made by the Assistant Settlement Officer was endorsed by the Deputy Secretary to Government Punjab, Rehabilitation Department and thereafter, respondent No. 1 passed the impugned order (Annexure P-22) on November 18, 1974, accepted the reference and ordered that the sale certificate issued in favour of the petitioner be amended so as to exclude the shop in dispute bearing No. W.B. 6. Aggrieved by this order the petitioner has filed the present petition.

At the very outset, the learned counsel for the petitioner urged that the question as to whether the shop in dispute No. W.B. 6 was a part of the property No. W.D. 6 had been finally settled between the parties by the judgment of Tewatia, J. (Annexure P-15) and that the Rehabilitation Authorities had no jurisdiction to reopen the matter and pass an order contrary thereto. The learned counsel for the respondents, on the other baud, relying on AIR 1940 222 (Privy Council) , Pritam Kaur Vs. State of Pepsu and Others, and Rabi Ram v. Dalip Singh 1972 P.L.J. 264, contended that the civil Court dismissed the suit with the finding that it had no jurisdiction and consequently any finding given on any other matter in its judgment would not operate as res judicata and be binding on the parties The argument of the learned counsel for the respondents appears to be unassailable. As held in Upendra Nath Bose''s case (supra) a Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction such reasons are not decisions and are certainly not decisions by a Court of competent jurisdiction Consequently where the Court for deciding the main issue whether it has jurisdiction to entertain the case comes to the conclusion that it has no jurisdiction, any finding given on any other matter would not be res judicata u/s 11 of the Code of Civil Procedure. It is the decision as to lack of jurisdiction which is res judicata and not reasons for that decision. That apart, the issue which was decided by the Civil Court was only as to whether it had jurisdiction to entertain the suit. Consequently, a mere opinion of the Court, as held in Pritam Kaur''s care (supra), on a matter not necessary for the decision of the case and not arising out of the issues before it is an obiter dictum and cannot be said to be a decision on any issue and, therefore, would not operate as res judicata. Consequently, any finding given by Tewatia, J., in the said judgment respecting the shop in dispute would not operate as res judicata and would be in the nature of obiter dicta and not binding on the parties. We have, therefore, no hesitation in overruling the first contention of the learned counsel for the petitioner that the dispute between the parties respecting property No. W.B. 6 had been finally settled by the civil court and the decision of Tewatia, J was binding on the patties.

The learned counsel for the petitioner next contended that the impugned order (Annexure P-22) was liable to be quashed as it was based on mere conjectures and surmises and on the misreading of the record. The perusal of the said record would show that the Financial Commissioner based his finding on three grounds, namely, that the judgments from the various Courts were secured by the petitioner in connivance with the staff of the Central Government who did not produce the relevant record with a view to help the auction-purchaser, that the site plan attached with the valuation form bears the date "2nd April 1957" whereas the property in dispute was sold in the year 1956 which shows that this plan had been got introduced later on by the interested party and that there were two different owners of the property marked as WD-6 and WB-6. The first reason given in the impugned order, as urged by the learned counsel for the petitioner, is based on mere conjectures and surmises and there is nothing on the record to show that the Rehabilitation Department withheld any record from the authorities which decided the matter in favour of the petitioner. As regards the second reason, it is, no doubt, true that the plan attached with the valuation form is dated ''2nd April 1957'' and appears to have been replaced in place of the original plan but from this fact alone no inference could be drawn that it was so done by the petitioner who had absolutely no access to the record of the department. However, the possibility cannot be ruled out that it may have been got done purposely by D.R. Sohal to create confusion who being Settlement Officer had an access to the record of the department- If it was the petitioner who got this plan replaced, he would have mentioned in it the exact area of property No. W.D. 6 including shop W.B. 6 and would not have felt satisfied only by an increase of 76 square feet whereas the shop in dispute measures 112 square feet. Similarly from the fact that the reserve value of the property in dispute was not changed although the area shown in the plan had been increased, it could not be concluded that the original plan did not include the shop in dispute. It is however, the third reason given in the impugned order which really vitiates the same. According to respondent No. 1, the properties in dispute which bear two municipal, numbers viz. B-III-1281 & 1282 are entered in the Property Register in the names of two Muslim evacuees, namely, Ahmad Ali Khan and Khan Bahadur Rehim Bux. It was from this fact that it was inferred that the properties Nos. W.D. 6 and W.B. 6 were separate entities. In order to verify this fact, we have perused the Property Register produced by the learned counsel for the State and its perusal reveals that property No. W.D. 6 includes both Nos. B-III 1281 and 1282 and whole of this property is entered in the name of Ahmad Ali Khan. This property is entered at Serial No 520 in the register and at Serial No. 521, property No. W.D. 5 is entered In between Serial Nos. 520 and 521, an entry is made where ownership of the property is entered in the name of Khan Bahadur Rehim Bux but neither its number is legible nor the name of the tenant because the page has been torn off at the relevant place. In the column of the persons in occupation respecting property No. W.D. 6 the entry includes the name of Gurdit Singh respondent No. 5 and the amount of rent payable by him is shown to be Rs. 3/-. According to the case set up by Gurdit Singh, he is in occupation of the shop in dispute since the year 1949 and is paying Rs. 3/- as monthly rent. This fact conclusively shows that the portion occupied by Gurdit Singh is part of property No. W.D. 6 and not a separate entity W.B. 6. This, conclusion is further strengthened from the fact that there is another property situate in different locality which bears No. W.B. 6. The finding of respondent No. 1, therefore, stands vitiated not only because it is based on conjectures and surmises but also because of the misreading of the entry in the Property Register. The stand taken by the department that the shop in dispute occupied by respondent No. 5 was part of property No. W.D. 6 was correct and respondent No. 1 after 19 years without there being any evidence on the record-illegally ordered the sale certificate to be modified so as to exclude the shop in the possession of the respondent No. 5 holding it to be a separate entity.

In the result, this petition is allowed and the impugned order set aside but without any order as to costs.

S.C. Mital, J.

I agree.