Brij Pal vs Bhudar

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 9.11.1979 passed by Additional District Judge, Gurgaon, who accepted the appeal of the plaintiffs and set aside the judgment and decree of the trial Court dated 28.8.1978 and plaintiffs were granted a decree for possession as tenants in respect of the land measuring 9 bighas 15 biswas comprised in Khasra No. 1064/83.

The brief facts of the case can be described in the following manner:-

"Bhuder and Rajbir filed a suit for declaration with a consequential relief of injunction and in the alternative for possession alleging that Kare, Chandi and Siriya sons of Sohal Lal were owners in equal shares of the land measuring 9 bighas 15 biswas and other land comprised in Khewat No. l, Khatoni No. 104, Khasra No. 1064/83 min situated in revenue estate of village Baghpur. This land was being cultivated by the plaintiffs or their predecessors-in-interest as tenants on payment of Rs. 3/- per bigha as rent. This land and other land formed part of surplus'' area of the land of Kare, Chandi and Siria and plaintiffs acquired the right to purchase the same under the Punjab Security of Land Tenures Act. Sukh Ram was the predecessor-in-interest of the defendants and he was also in possession of some portion of the land in this very Khasra bearing No. 1064/83 and he obtained a mutation of ownership sanctioned on 27.10.1976 in respect of the suit land and other land also forming part of said khasra number. The plaintiffs felt aggrieved by this mutation and have alleged that said mutation No. 167 dated 27.10.1976 does not bind their rights and the defendants are not entitled to disturb the possession of the plaintiffs on the strength of this mutation which was sanctioned in their absence. The said mutation is void, illegal and not binding on the rights of the plaintiffs.

The suit was contested by the defendants on the plea that plaintiffs had no locus standi to file the suit; that the suit is not legally maintainable as the plaintiffs are neither in possession nor tenants over the disputed land; that the suit is barred by time; that the suit is not properly valued for the purposes of court fee and jurisdiction and that the civil court has no jurisdiction to try the suit. On merits, the stand of the defendants was that neither the plaintiffs nor their predecessor-in-interest were in possession of the land and the land in question never formed the surplus land of Kare, Chandi and Siria and that the plaintiffs had no right to purchase the same. According to the defendants, they are the true owners and are in actual possession of the suit land which was purchased by Sukh Ram under the provisions of Punjab Security and Land Tenure Act vide the order of the Assistant Collector. The mutation has been rightly sanctioned in favour of the defendants.

From the above pleadings of the parties, the trial Court framed the following is-sues:-

Whether the suit land is in possession as tenants with the plaintiffs? OPP.

Whether the suit is time barred? OPD

Whether the civil court has got no jurisdiction? OPD.

Whether defendant No. 3 Bhola was the minor at the time of filing of the suit, if so to what effect? OPD

Relief.

The parties led oral and documentary evidence in support of their respective cases and on the conclusion of the trial issue No. 1 was decided against the plaintiffs and in favour of the defendants. Issue No. 2 was not pressed at the time of arguments and was decided against the defendants. Issues No. 3 and 4 were also decided against the defendants. Resultantly, on the basis of the findings given by the trial Court on issue No. 1, the suit was dismissed and the observation of the learned trial Court were as follows:-

"In the result, even if the suit of the plaintiffs for declaration that they have been in possession of the suit land as tenants under Kare etc. owners is decreed on the basis of entries in the jamabandi for the year 1965-66, no relief can be granted with regard to permanent injunction restraining the defendants from interfering in the possession of the plaintiffs. The suit is accordingly dismissed."

Aggrieved by the judgment and decree of the trial Court the unsuccessful plaintiff filed the first appeal in the Court of Additional District Judge, Gurgaon, who for the reasons given in para Nos. 9 to 17 of the judgment decreed the suit of the plaintiffs by setting aside the judgment and decree of the trial Court as I have already stated above in the earlier portion of this judgment and aggrieved by the judgment and decree passed by the first Appellate Court, the present appeal filed by the defendants.

I have heard the learned counsel for the parties and with their assistance I have gone through the records of this case.

Let met first examine the admitted position of this case. It is proved on the record that Khasra No. 1064/83 had a larger area than that of 9 bighas and 15 biswas. The case set up by the plaintiffs was that they were the tenants on the chunk of the land measuring 9 bighas and 15 biswas comprising part of Khasra No. 1064/83. Sukh Ram, father of the defendants, was also a tenant like the plaintiffs on a part of this very Khasra No. Sukh Ram submitted an application u/s 18 of the Punjab Security of Land Tenures Act (hereinafter referred to as ''the Act'') and he was allowed to purchase the land measuring 35 bighas and 13 biswas by the Collector vide order dated 13.12.1962 and on the basis of this order the mutation was entered on 5.3.1970 in the revenue record and ultimately the mutation was sanctioned after dispute on 27.10.1970. In spite of the fact that plaintiffs were in possession of the land measuring 9 bighas and 15 biswas, still the mutation of the area measuring 35 bighas and 13 biswas was sanctioned in favour of Sukh Ram on 27.10.1970.

The point which survives for determination would be whether Sukh Ram was in possession of the land measuring 35 bighas 13 biswas on the date when he filed the application u/s 18 of the Act and whether the plaintiffs were in possession of the land measuring 9 bighas 15 biswas and whether the land of the plaintiffs upon which they were in possession as tenants under the owners has been included in the order of the Collector on the basis of which the mutation dated 27.10.1970 has been sanctioned. Sukh Ram could acquire the area and the Court will grant relief only in respect of that parcel of land over which he was proved as tenant for a continuous period of more than six years. The reliance of the defendants is on Ex DS/1. But the perusal of the same would show that no description of the land has been mentioned in this order. Sukh Ram while submitting the application described himself as a tenant of the land measuring 19 bighas 10 biswas out of Khasra No. 1064/83, but his possession over this area was not established. Rather he was found in possession of the land measuring 8 bighas as against the claim of 19 bighas 10 biswas. Subsequently it was certified that Sukh Ram was a tenant to the extent of the land measuring 19 bighas 10 biswas. But except this certification there was no material before the Collector before sanctioning of the mutation dated 27.10.1970. The defendants also could not produce any evidence that Sukh Ram was tenant over the land measuring 19 bighas and 10 biswas as claimed by them before the surplus authorities. In this view of the matter when the possession of Sukh Ram, father of the defendants, was established only to the extent of 8 bighas vide report of the Assistant Collector Grade-II, the order of the surplus authorities allotting area measuring more than 8 bighas i.e. 9 bighas and 15 biswas could be held without jurisdiction of the surplus authorities. As against this, it is proved on the record that plaintiffs were in possession of the land measuring 9 bighas and 15 biswas as tenant and this area was included in the mutation which was sanctioned in favour of the father of the defendant namely Sukh Ram.

The second point which survives for determination is whether the civil court had the jurisdiction to entertain the suit or not. The learned counsel for the appellants pressing the point that civil court has no jurisdiction relied upon Ram Chander and Ors. v. Dallu and Anr.1982 P.L.J. 230 and submitted that if an order has been passed by the Revenue Officer u/s 18 of the Act on the application made by the tenant and if a challenge is given to such order in a civil court, the civil court cannot pass any judgment about the legality of the order and the remedy to the aggrieved party is to approach the Revenue Tribunals under the Act.

On the contrary, the contention of the learned counsel for the respondents is that the ratio is not applicable to the facts in hand because in order to dispossess the plaintiffs it was incumbent upon the defendants to establish that all the ingredients of Section 18 of the Act are established and proved. Though the defendants were the tenants for the last six years before they made the application u/s 18 of the Act for the purchase of the surplus area but it was not established about the extent of the area which was under their cultivation before the purchase and if the Collector u/s 18 has passed the order which is beyond his jurisdiction to do so, the civil court has always the competency to entertain the suit.

After considering the contentions of the learned counsel for the parties, I am of the opinion that in the present case the civil Court had the jurisdiction to entertain the suit because it has been rightly remarked by the first Appellate Court that it has been wrongly certified by the Collector that the defendants were the tenants to the extent of land measuring 19 bighas 10 biswas. In fact, they were only in possession of 8 bighas vide first report of the Assistant Collector Grade-II. Once the genuineness of the document declaring the defendants in possession of the land measuring 19 bighas 10 biswas is in dispute, certainly the civil Court will entertain the suit.

The counsel for the appellants also relied upon a judgment Amar Singh Vs. Waryam Singh, . This judgment is not again helpful to the counsel for the appellants. It was held in this authority that purchase of a tenancy land by a tenant u/s 18 is final and cannot be questioned in Civil Court. Here the plaintiffs are on a different issue. The case of the plaintiffs is that under the garb of mutation dated 27.10.1970, which has been wrongly sanctioned in favour of the defendants, they want to disturb the possession of the plaintiffs over the land over which they were in possession as tenants under their landlord. In this view of the matter it is always open for the plaintiffs to complain to the Civil Court that their possession is being disturbed from the land under their cultivation as tenants by a person who is not authorised to take the possession. As against this, the learned counsel for the respondents relies upon a judgment of the Full Bench of our own High Court State of Haryana and Ors. v. Vinod Kumar and Ors.(1986)89 P.L.R. 222 (F.B.), where it was held that the order of the Collector declaring land as surplus without affording the concerned land owner an opportunity of being heard, as envisaged by Rule 6 of the Punjab Security of Land Tenures Rules, is a nullity and a civil suit to challenge the validity of such an order is maintainable despite Section 25 excluding the jurisdiction of the Civil Court. In this case, I have held above that mutation dated 27.10.1970 does not give a right to the defendants to disturb the possession of the plaintiffs and if after the mutation their possession has been disturbed, certainly the plaintiffs will be entitled to claim the relief of injunction or in the alternative the relief of possession.

The counsel for the appellants also made an effort to show that the suit is beyond limitation as it has not been filed within three years from the date of the sanctioning of the mutation dated 27.10.1970. The counsel wanted to develop an argument that the respondent-plaintiffs are challenging the mutation and, therefore, they should have filed the suit within three years from the date of this order. In support of his contention, the learned counsel relied upon Sarupa and Others Vs. The Panchayati Akhara and Others, . The judgment relied upon by the learned counsel for the appellants is not applicable to the facts in hand. In the cited case an ex-parte decree was passed by the Collector, Agrarian and suit for declaration was filed that it was void. The Hon''ble High Court held that the right to seek relief accrues from the date of the knowledge and since the suit has been filed after three years, therefore, it is barred on account of limitation. Here the facts are different. It was a suit for declaration and for injunction. The case of the plaintiffs as read between the lines was that they were tenants under Kare, Chandi and Siriya and were holding the land as tenants measuring 9 bighas 15 biswas. Their possession is being disturbed and threatened by the defendants under the garb of mutation. Otherwise, their basic suit was for injunction. Incidentally mutation dated 27.10.1970 has been challenged by the plaintiffs, but virtually the relief which the plaintiffs were seeking was the relief of injunction. On the date of the institution of the suit they were disturbed from possession in execution of the order of the Collector in pursuance of which the mutation was sanctioned. The moment the plaintiffs came to know about the mutation, which was beyond the jurisdiction of the Collector Agrarian, they instituted the suit. It has been averred in para No. 6 of the plaint that the cause of action accrued to the plaintiffs about a month ago when defendants threatened to disturb the possession of the plaintiffs and it also arose when the copies of the revenue records were obtained by the plaintiffs on 28.8.1973. The suit was instituted on 13.9.1973. During the pendency of the suit the plaintiffs were dislodged from the land which was earlier in their possession, therefore, the first Appellate Court rightly granted a decree for possession.

Faced with this difficulty, the learned counsel for the appellants submitted that there is no averment or evidence led by the plaintiffs to show that they were dispossessed by the defendants and further that they lodged the possession of the land to the defendants and in the absence of such proof, the relief as granted by the first Appellate Court could not be granted. The submission of the learned counsel for the appellants is again devoid of any merit. I have stated in the earlier portion of this judgment and it has been rightly concluded by the first Appellate Court that with respect to Khasra No. 1064/83 the defendants were in possession of the land measuring 8 bighas and the statement of the Assistant Collector to the extent that they were in possession of 19 bighas 10 biswas is wrong. The land occupied by the plaintiffs went to the defendants during the consolidation proceedings and this fact cannot disentitle the plaintiffs from claiming the relief of possession when they have been able to prove that they were the tenants before the consolidation proceedings. The consolidation proceedings took place during the pendency of the suit and with the sanction of the mutation the names of the tenants were removed from the revenue record. The only inference, under these circumstances, which can be drawn is that it were the defendants who dislodged the plaintiffs and the result is inevitable that the land measuring 9 bighas 15 biswas belonging to the plaintiffs was included in the mutation which was sanctioned in favour of Sukh Ram, who was the predecessor-in-interest of the defendants.

In this view of the matter, I do not see any merit in this appeal and dismiss the same with no order as to costs.