Chatter Singh and anr. vs Behari Lal

B.S. Yadav, J.

The facts leading to this second appeal are that the present respondent Behari Lal had filed this suit against the present appellants respondent that he was a tenant on the suit land under defendant No. 1 Chatter Singh, who was a displaced person. The total holdings of Chatter Singh on 15th April, 1953, from which date the Punjab Security of Land Tenures Act, 1953 (for short the Act) came into force, was 39 standard acres and 15 units as owner and 12 standard acres and 8 units as mortgagee with possession. Thus Chatter Singh was a big landowner. He did not exercise his option under the Act to reserve the area for selfcultivation with in the specified time and as such he was not entitled to retain more than 10 standard acres for selfcultivation and the remaining was to be declared as surplus area. Any transfer effected, which had the effect of diminishing the area of the landowner, was contrary to the provision of the Act and was void. Chatter Singh allowed mortgage to be redeemed. The redemption was void. Moreover, it amounted to transfer of land and had to be ignored. Chatter Singh allowed also transferred some land to his son Onkar (defendant No. 2). That transfer was also bad. The plaintiff filed application under Section 18 of the Act for purchasing the land under his occupancy. Onkar Singh also filed an application for ejectment of the plaintiff. The plaintiff''s application for purchase fo the land was dismissed. Ejectment application filed by Onkar Singh against the plaintiff was allowed. The plaintiff filed appeals in both the cases but the Collector vide orders dated 29h October, 1969 dismissed both the appeals. In this suit the plaintiff prayed for a declaration that at the suit land was surplus area of Chatter Singh and the above orders of the Collector were bad in law.

The defendants contested the suit. They admitted the fact that the plaintiff was a tenant on the suit land. It was pleaded that defendant No. 1 was a small landowner and the impugned orders were valid. Some other pleas were also taken as will be clear from the following issues framed by the trail Court

(1) Whether the Civil Court has got jurisdiction in this suit?

(2) Whether Chatter Singh defendant No. 1 is not a necessary party to this suit and whether the suit is bad for misjoinder of the parties?

(3) Whether the suit is maintainable in the present form?

(4) Whether the defendant No. 1 is a big landowner and the suit land is surplus area?

(5) Whether the impugned orders are illegal, ultra vires and bad in law as alleged?

(6) Whether the plaintiff is tenant on the suit land under the defendant No. 1 and whether he is entitled to purchase the suit land under Section 18 of the Act No. 10 of 1953.

(7) Whether the suit is properly valued for purposed of courtfee and jurisdiction?

(8) Relief.

Under issue No. 1 it was held that the Civil Court had jurisdiction to tray the suit. Under issue No. 2 it was held that Chatter Singh was a necessary party for the effective decision of the suit. Under issue No. 3 it was held that the plaintiff had not been ejected from the suit land and, therefore, the suit in the present form was maintainable. Issue Nos. 4 and 5 were discussed together and it was held that the impugned orders were legal and binding on the plaintiff. Under issue No. 6 it was held that though the plaintiff was in occupation of the suit land for a period of 6 years as required by Section 18 of the Act but he was not entitled to purchase the land as Chatter Singh had not been proved to be a big landowner. Under issue No. 7 it was held that proper Courtfee had not been paid. As a result of the above findings, the plaintiff''s suit was dismissed.

The plaintiff filed appeal which was heard by learned Senior Subordinate Judge, exercising Enhanced Appellate Powers, Gurdaspur. He held that Chatter Singh (defendant No. 1) was a big landowner and that the land in suit was his surplus area and the plaintiff was entitled to purchase it under Section 18 of the Act and the orders of the Collector were illegal and bad in law. Accordingly, he set aside the findings of the learned trial Court under issue Nos. 4, 5 and 6. Consequently, he accepted the appeal and decreed the suit of the plaintiff. Feeling aggrieved, the defendants have come to this Court in second appeal.

The learned counsel for the appellants argued that the plaintiffrespondent is challenging the order dated 29th October, 1969 passed by the Assistant Collector Ist Grade, which was confirmed in appeal vide order Exhibit P. 9 by the Collector, by which his purchase application filed by him under Section 18 of the Act was rejected. He argued that a tenant can be allowed to purchase land under that provisions only if the conditions laid down therein are satisfied. He referred to Section 18(1) of the Act, the relevant portion of which reads as follows:

Section 18 (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small landowner

(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or

(ii) who has been restored to his tenancy under the provision of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or

(iii) who was ejected from his tenancy after the 14th day of August, 1947 and before the commencement of this Act and who was in continuous occupation of the land comprised is his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the landowner, the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) within period of one year from the date of commencement of this Act. ......"

He agreed that a tenant has first to prove that his landowner is a big landowner and secondly that the land under his occupancy is not included in the reserved area of the landowner. He argued that order Exhibit P. 9 shows that Chatter Singh, defendantlandowner had been declared a small landowner vide order of the Collector (Agrarian) dated 31st January, 1966 i.e. before the plaintiff had filed the application under Section 18 of the Act and as that order has not been challenged upto this time it has become final. According to him the validity of the order by which the landowner was declared a small landowner cannot be challenged in proceedings under Section 18 of the Act. I am of the opinion that this argument has force. Reference can be made to Mukand Lal and others v. Naurang, 1969 P.L.J. 388, wherein it was remarked:

"I find that both the Collector and the learned Additional Commissioner, have overlooked the basic issue raised in this case. It is whether the order of the Special Collector by which the sur plus area of the petitioner Mukand Lal was determined according to the law as it stood at that time can be subsequently varied or overlooked during proceedings under Section 18of the Punjab Security of Land Tenure Act. All that has to be determined in the purchase proceedings is whether the land claimed by the tenant is a part of that surplus area or not. This issue already stood decided by the competent authority. The Assistant Collector and for that matter the Collector, had no jurisdiction whatsoever to proceed to find faults with this order."

Reference can also made to Bhanti Devi v. The Financial Commissione, Haryana and others, 1981 Revenue Law Reporter 323, wherein it was remarked:

"The Act has not granted the tenants the right to purchase the land of a person who has been declared to be a small landowner by the competent authorites. The Commissioner and the Financial Commissioner have both gone wrong in coming to the conclusion that the order of the Collector declaring Smt. Bhanti Devi and Raghbar Dayal as small landowners is of no consequence. These are valid orders and have to be respected even by the authorities determining the purchase applications under Section 18 of the Act."

Thus when an order declaring Chatter Singh a small landowner has become final, the plaintiff cannot agitate in the instant suit that his landowner was a big landowner and that his application for the purchase of the land under his occupancy was wrongfully disallowed by the Assistant Collector.

The learned counsel for the respondent argued that at the time Chatter Singh was declared a small landowner, the plaintiff who was a tenant on a part of his land was not heard. According to him all interested persons are entitled to be heard at that time. However, the plaintiff has not averred in he plaint that he was not heard at the time when his landlord was declared a small landowner. As noticed earlier, he has not challenged the order by which Chatter Singh was declared a small landowner.

The learned counsel for the appellants next argued that the validity of the order passed under Section 18 of the Act cannot be challenged in a Civil Court. He placed reliance upon Section 25 of the Act which reads as follows:

''Section 25 Except in accordance with the provisions of this Act the validity of any proceedings or order taken or made under this Act shall not be called in question in any Court or before any other authority."

I am of the opinion that this argument has also force. In this respect reference can be made to Ram Chander and others v. Dallu and another, 1982 P.L.J. 230. In that case persons claiming themselves to be tenants of a big landowner had filed applications under Section 18 of the Act and those were allowed by the Assistant Collector vide order which was exhibited as P. 2 in the suit later on filed by another tenant challenging that order as void and ineffectual qua his own right. The trial Court dismissed the suit but on appeal it was decreed. The tenants in whose favour the purchase application had been allowed came to this Court in second appeal. It was remarked:

"Section 25 of the Act lays down that the validity of any proceedings or order made under this Act shall not be called in question in any Court. This Section applies with full vigour to the order Exhibit P. 2 dated 7.12.1963 and the Roznamacha entry Exhibit P. 1 dated 23.5.1963. In other words no Civil Court can pass any judgment about the legality of an order passed by a revenue officer on the purchase application made by a tenant nor can it do likewise on an order passed in favour of an ejected tenant who is settled on surplus area. If any of the parties is aggrieved by these orders, it is open to it to approach the revenue tribunals constituted under the Act."

The plaintiff in the instant case ought to have agitated before the higher revenue authorities but he could not file the civil suit challenging the dismissal of his application filed under Section 18 of the Punjab Tenancy Act. Hence the suit was not maintainable in the Civil Court.

On merits also, the plaintiff had no case. It is not in dispute that if the land which was mortgaged with Chatter Singh is taken out of the area held by him on account of redemption of the mortgage, Chatter Singh will fall within the definition of small landowner at the time he was declared as such by the competent authority. The argument of the learned counsel for the appellants was that the redemption of mortgage does not amount to transfer or disposition of the land as envisaged by Section 10A of the Act. He placed reliance upon Kahan Singh alias Kanu v. The Financial Commissioner, Development, Punjab and others, 1969 P.L.J. 295, wherein it was remarked:

"The question is whether a mortgagee who is deprived of mortgaged land by same being redeemed by the mortgagor, can be said to transfer or dispose of land within the meaning of Section 32FF. Mahajan J., held in Bishan Singh v. The State of Punjab and others (supra), that when land is redeemed by a mortgagor, there is no transfer by a landlord. References was made by the learned Judge to an earlier judgment by me in Bhajan Lal and others v. The State of Punjab and others, 1968 P.L.J. 213 (1968 L.L.T. 221) wherein I had held while dealing with Section 10 A (b) of the Punjab Security of Land Tenures Act that "transfer" or "other disposition" does not include involuntary deprivations of land. I am firmly of the view that when a mortgagor takes back his land by redeeming it from the mortgagee, it cannot be said that the mortgagee has transferred or otherwise disposed of the land with in the meaning of Section 32FF of the Act."

Bishan Singh''s and Bhajan Lal''s cases, referred to in the above cases were followed by another Bench of this Court. That judgment is reported as Bhagwan Singh v. State of Punjab and others, 1960 P.L.J. 306, wherein also it was held that the land redeemed by the mortgagor was not a transfer by the mortgagee and as such was not covered by Section 32FF of the Pepsu Tennacy and Agricultural Lands Act. Though the above cases were under Section 32FF of the Pepsu Tenancy and Agricultural Lands Act, 1955 but the above observation will fully apply to the instant case. Section 32FF of the Pepsu Act is practically similar to Section 10A of the Act. As noticed earlier, it is not disputed that if an area which has been redeemed is excluded from the area held by Chatter Singh then he would become a small landowner.

Another thing to be noticed is that even if for the sake of argument it is held that Chatter Singh is held to be a big landowner even then the plaintiff cannot succeed in the present case. There is not an iota of evidence to show that the land is not included in the reserved area of the landowner.

Learned counsel for the appellants also argued that the plaintiff ceased to be a tenant when ejectment order was passed against him and it was not necessary that he should have been actually ejected from the land in his occupancy. It is not necessary to dwell upon this point as it will depend upon the fact if Chatter Singh was a big landowner or not at the time he transferred some land of his in favour of his son Onkar Singh. The ejectment order has been passed in favour of Onkar Singh.

For the foregoing reasons I accept the present appeal and set aside the judgment and decree of the lower appellate Court and restore that of the trial Court by which plaintiff''s suit was dismissed. The parties are left to bear their own costs in present appeal.