Ganeshi and others vs Bedi Ram and others

Sat Pal, J.—By this judgment, two appeals bearing R.S.A. No. 1208 of 1989 and R.S.A. No.23 of 1990 are being disposed of as both the appeals are directed against the same judgment, dated 19th April, 1989, passed by the Additional District Judge, Faridabad.

Briefly stated, the facts of the case are that Keshav who is the father of the appellants in R.S.A. No. 23/90, namely Bedi Ram, Bhogi Ram and Krishan Kumar, was the owner of the land including the suit land measuring 468 kanals situated at village Pangaltu Tehsil Palwal District Faridabad. In the year 1960, the suit land was declared as surplus under the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Punjab Act). As per the case of the appellants in R.S.A. No. 23/90, the said surplus land was not utilised till the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as the Haryana Act) came into force on 23rd December, 1972. It may be pointed out that the appointed day under the said Act was 24th January, 1971. In the year 1970, Bedi Ram, Bhogi Ram and Krishan Kumar (hereinafter referred to as the plaintiffs) filed suit bearing No. 434/1970 against their father Keshav for declaration that by way of family settlement the plaintiffs and their father Keshav had become owners in possession of different holdings. It was pleaded in this suit that by way of gift, Keshav had parted with the suit land in favour of plaintiff No. 1 but later a dispute had arisen, then a family settlement took place, in terms of which Bedi Ram became owner of land measuring 115 kanals 16 Marlas as described in para 1(a) of the plaint. Bhogi Ram became owner of land measuring 115 kanals 8 Marlas as described in para 1(b) of the plaint and Krishan Kumar became owner of land measuring 16 canals 13 Marlas as described in para 1(c) of the plaint and their father Keshav remained owner in possession of the land measuring 114 kanals 6 Marlas described in para 2 of the plaint. On the basis of alleged family settlement, suit No. 434/1970 was decreed by consent vide decree dated 7th January, 1971.

In the year 1980, the surplus land was utilised and vide orders dated 28th August, 1980 (Exhibit DW 4/1 to Exhibit D.W. 27/1) passed by the prescribed authority, the said land was allotted to private defendants who are respondents in appeal No. RSA 23/90 and are appellants in RSA No. 1208/89. The case of the private defendants is that the possession of the land in dispute was taken over by them during the period from 26th September, 1980 to 2nd October, 1980 vide Reports Roznamcha Exhibits D. 3 to D. 29).

Suit No. 470/1980 out of which the present (sic)19th September, 1980 against the defendants for permanent injunction restraining the defendants from interfering into the legal possession of the plaintiffs and in the alternative decree for possession in case defendants Nos. 2 to 29 succeed to take an illegal possession of the suit lands. In this suit it was claimed by the plaintiffs that the suit land had never been surplus or at least it ceased to be so as it was never utilised before the appointed day, and the order dated 29th January, 1960 declaring the suit land as surplus and the orders of allotment dated 28th August, 1990 in favour of defendants Nos. 3 to 29 were illegal and the plaintiffs were continuing as owners in possession. It was prayed that the defendants be restrained from dispossessing the plaintiffs from the suit land and in the alternative it was prayed that if they were found to have been dispossessed (during the pendency of the suit) the possession be restored to them. On 16th October, 1980, the trial court passed order of status quo with regard to possession of the suit land.

Along with the suit, the plaintiffs had also filed an application for appointment of a Local Commissioner to find out as to who was in possession of the suit land. Pursuant to this application, the learned trial Court appointed Shri Harikishan Lal Advocate as Local Commissioner who submitted his report dated 28th November, 1980 (Exhibit P.2). As per this report, the suit land was under cultivation of the plaintiffs.

The learned trial court vide its judgment, dated 21st January, 1984 dismissed the suit of the plaintiffs. By this judgment, the learned trial court held that the plaintiffs had failed to prove that they were owners in cultivating possession of the suit land and on the other hand, the suit land was declared as surplus on 29th January, 1960 and was under active cultivation of defendants Nos. 3 to 29 even after 28th August, 1980 when it was allotted in their names. It also held that the consent decree dated 7th January, 1971 had no effect on the rights of the defendants Nos. 3 to 29 over the suit land in view of the provisions of Section 12(3) of the Haryana Act.

Aggrieved by the judgment dated 21st January, 1984 passed by the learned trial court the plaintiffs filed appeal bearing Civil Appeal No. 88 of 1994. The learned Additional District Judge, Faridabad vide his impugned judgment dated 19th April, 1989 allowed the appeal and decreed the suit of the plaintiffs. By this judgment, the learned Additional District Judge has held that the suit land is the declared surplus area and, therefore, it has vested in the State from the appointed day i.e. from 24th January, 1971. The learned Additional District Judge, however, held that since the plaintiffs were continuing to be in possession and the suit filed by them was only for permanent injunction to get the defendants restrained from taking forcible possession, the suit for injunction should have been decreed the lower court.

R.S.A. No. 1208 of 1989 has been filed by the private defendants against the findings of the learned Additional District Judge that since the plaintiffs are continuing to be in possession of the suit land, they are entitled to the relief of permanent injunction as prayed in their suit. R.S.A. No. 23 of 1990 has been filed by the plaintiffs against the findings of the learned Additional District Judge that the suit land was the declared surplus area and, therefore, has vested in the State from the appointed day i.e. 24th January, 1971.

Mr. Jain, learned Senior Counsel, appearing on behalf of the plaintiffs, submitted that the area of land which had come to the share of the plaintiffs by virtue of the decree dated 7th January, 1971 passed before the appointed day (i.e. 24th January, 1971) and before the commencement of the Act (i.e. 23rd December, 1972) had to be excluded under Section 8(1)(b) of the Haryana Act as the area owned by each of the plaintiffs was not in excess of permissible area under the said Act. In this connection, the learned counsel referred to Sections 3(f)(q), 4, 8, 9, 11 of the Haryana Act and rules 6(6), 20, 20A, 20B, 20C and 20D of the Punjab Security of Land Tenures Rules, 1956. Relying on Section 3(q) and Section 3(f) of the Haryana Act, the learned counsel submitted that every adult son was a separate unit for the purpose of ceiling on land. He submitted that in terms of the decree dated 7th January, 1971 passed by the Sub Judge 1st Class Palwal, plaintiffBedi Ram was declared owner of 115 Kanals 16 marlas, plaintiff Bhogi Ram 115 Kanals 8 Marlas and plaintiff Krishan Kumar of 116 Kanals 13 Marlas and since the said decree was passed before the appointed day (i.e. 24th January, 1971) as well as before 23rd December, 1972 when the said Act came into operation, the decree was binding in nature. He further submitted that land coming to the share of each of the plaintiffs in terms of the said decree was within the ceiling fixed under the provisions of the Haryana Act and as such, the said land could not be treated as surplus area. The learned counsel further submitted that even otherwise, the suit land which was declared as surplus in 1960 ceased to be surplus in 1971 after the decree dated 7th January, 1971 was passed, as till that date, the same had not been utilised by the State in accordance with the provisions of the Punjab Security of Land Tenures Rules, 1956. In support of his submission, the learned counsel placed reliance on the following judgments:

(1) Jaswant Kaur v. State of Haryana, 19771 PLJ 230;

(2) State of Haryana v. Chandgi, 1981 PLJ 494;

(3) Raj Pal Singh v. S.D.O. Civil, Jagadhari, 1988(1) R.R.R. 542 : 1987 PLJ 564;

(4) Financial Commissioner Haryana v. Smt. Kela Devi, 1980 PLJ 121.

Buta Singh v. Jota Singh (deceased) through LRs, 1991 PLJ 180 : 1991(2) RRR 225; and

Chuhar Singh v. State of Punjab, 1992 PLJ 71 : 1992(1) RRR 215..

The learned counsel further submitted that as held by the learned Additional District Judge, the plaintiffs were continuing to be in possession of the suit land. He submitted that as per report dated 28th November, 1980 (Exhibit P2) of the Local Commissioner, the suit land was under cultivation of the plaintiffs. He further submitted that private defendants did not file any objection against the report of the Local Commissioner. He, therefore, contended such a report had to be treated as legal evidence if objections were not filed. In support of his contention, he placed reliance on a judgment of the Supreme Court in Southern Command Military Engineering Services Employees Cooperative Credit Society v. V.K. Nambair (deceased) by L.Rs>, AIR 1988 SC 2126.

The learned counsel further submitted that since the plaintiffs were continuing to be in possession, they could be evicted only in the manner authorised by law. In support of this contention he placed reliance on a judgment of the Supreme Court in Mohan Lal and another v. State of Punjab and others, 1971 PLJ 338. He, therefore, contended that the findings of the learned Additional District Judge decreeing the suit of the plaintiffs be upheld.

Shri Raj Mohan Singh, learned counsel appearing on behalf of the private defendants, raised a preliminary objection that the suit filed by the plaintiffs was not maintainable. He submitted that the order dated 29th January, 1960 (Exhibit D.2) declaring the suit land as surplus was passed by the prescribed authority under Rule 6(6) of the Punjab Security of Land Tenures Rules and this order was never challenged by the plaintiffs and as such, this order had attained finality. He, therefore, contended that the suit of the plaintiffs was not maintainable in view of the bar under section 25 of the Punjab Act. In support of this submission, he placed reliance on a judgment of this Court in Kalu v. Triloki Nath, 1985 R.R.R. 653 : 1984 Revenue Law Reporter 369.

The learned counsel further submitted that admittedly the suit land was declared surplus by the prescribed authority on 29th January, 1960. He submitted that in terms of Sections 8 and 12(3) of the Haryana Act, transfers of land made prior to 30th July, 1958 only were protected but in the present case, the alleged transfer in terms of decree dated 7th January, 1971 was made in 1971 and therefore, was not protected. He submitted that the case of the plaintiffs was also not covered by any of the three exceptions under section 8(1) of the Act. He, therefore, contended that the suit land would vest in the State Government with effect from the appointed day, i.e. 24th January, 1971. In support of this contention, he placed reliance on a judgment rendered by five Hon''ble Judges of this Court in the case of Jaswant Kaur (supra).

The learned counsel further submitted that the Government, under the provisions of the Haryana Act, has unfettered right without any time limit to utilise land declared surplus for resettlement of tenants. He, therefore, contended that the allotment of the suit land to the tenants in August, 1980 was legal and valid. In support of this submission, he placed reliance on a judgment of the Supreme Court in Sher Singh v. Financial Commissioner and others, 1987 PLJ 209 : 1987 RRR 368 (SC) and a judgment of this Court in Bharat Bhushan v. Haryana State, 1990 PLJ 563 : 1991(1) RRR 223.

Regarding possession of the suit land, the learned counsel submitted that the private defendants were put in possession of the suit land during the period from 26th September, 1980 to 2nd October, 1980 and this fact was duly proved by reports of Roznamchas (Exhibit D.29). He submitted that the status quo was granted by the court on 16th October, 1980 but the private defendants had already been put in possession till 2nd October, 1980 as stated herein above. He also submitted that four of the allottee were murdered by the plaintiffs. He submitted that findings given by the criminal court that the plaintiffs were in possession of the suit land at the time alleged murders were not binding on the civil court. In this connection, he referred to a judgment of the Supreme Court in M/s Karamchand Ganga Parshad and others v. Union of India and others, AIR 1971 SC 1244 and a judgment of this court in Vinod Kumar of Patiala v. Nawal Kishore, 1989 HRR 16. Regarding report of the Local Commissioner, he submitted that the private defendants were not parties in the suit when the Local Commissioner was appointed and the said report was prepared at the behest of the plaintiffs. Lastly, he submitted that the possession of the private defendants was also proved by the documentary evidence consisting of reports of Roznamcha (Exhibits D.3 to D.29) and Khasra Girdawaries (Exhibit D. 33 to D. 59).

Mr. Jain, learned counsel for the plaintiffs, in his rejoinder arguments submitted that the private defendants could not be permitted to raise the issue of maintainability of the suit as a specific issue was framed on this point and the said issue was not pressed by the defendants before the learned trial Court. He submitted that even otherwise, since the point of jurisdiction was raised in the suit, Civil Court had jurisdiction to entertain the suit of the plaintiffs. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Gurbax Singh v. The Financial Commissioner & others, 1991 PLJ 192 and a judgment of this Court in State of Haryana and others v. Vinod Kumar and others, 1987 R.R.R. 81 : 1986 PLJ 161.

I have given may thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the lower court records. As regards the preliminary objection raised by the learned counsel for the private defendants, I do not find any merit in this objection as the said objection was not pressed by the defendants before the learned trial Court though the specific issue regarding the jurisdiction of the Civil Court was framed by the learned trial Court. Accordingly this objection is rejected.

Before dealing with the contentions advanced by the learned counsel for the parties on the merits of the case, it will be relevant to refer to Sections 4, 8 and 12 of the Haryana Act which read as under:

"4. Permissible area (1) The permissible area in relation to a landowner or tenant or mortgagee with possession or partly in one capacity or partly in another, of person or family consisting of husband, wife and upto three minor children (hereinafter referred to as "the Primary unit of family") shall be in respect of (a) land under assured irrigation capable of growing at least two crops in a year (hereinafter referred to as the land under assured irrigation), 7.25 hectares;

(b) land under assured irrigation capable of growing at least one crop in a year, 10.9 hectares.

(c) land of all other types including land under orchard, 21.8 hectares;

(2) The permissible area shall be increased by onefifth of the permissible area of the primary unit of family for each additional member of family;

Provided that the permissible area shall not exceed twice the permissible area of the primary unit of family;

(3) The permissible area shall be further increased upto the permissible area of the primary unit of a family for each separate auit;

Provided that where the separate unit also owns any land, the same shall be taken into account for calculating the permissible area.

(4) The permissible area shall be determined on the basis of valuation to be calculated in the prescribed manner taking into consideration the ownership of the means of irrigation, their intensity and such other factors as may be prescribed subject to the condition that the total physical holding does not exceed 21.8 hectares.

(5) In determining the permissible area for the purpose of clause (a) of subsection (1), five hectares of land under irrigation from privately owned tubewells, pumping sets, etc. shall be equal to four hectares of land under irrigation from canal as defined in the Northern India Canal and Drainage Act, 1873 (Central Act. No. 8 of 1873) or from State Tubewell as defined in the Punjab State Tubewell Act, 1954 (Punjab Act No. 21 of 1954).

(6) For evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from person to whom he is an heir shall be evaluated as if the evaluation was being made on the appointed day and the land acquired by him after the appointed day in any other manner shall be evaluated as if the evaluation was being made on the date of such acquisition.

Certain transfers or dispositions not to affect surplus area. (1) Save in the case of land acquired by the Union Government or State Government under any law for the time being in force or by a tenant under the Pepsu law or the Punjab law or by an heir by inheritance, no transfer or disposition of land in excess of

(a) the permissible area under the Pepsu law or the Punjab law after the 30th day of July, 1958; and

(b) the permissible area under this Act, except a bona fide, or disposition after the appointed day,

shall affect the right of the State Government under the aforesaid Acts to the surplus area to which it would be entitled but for such transfers or disposition;

Provided that any person who has received an advantage, under such transfer, or disposition of land shall be bound to restore it, or to pay compensation for it, to the person from whom he received it.

(2) The burden of proving the transfer or disposition to be a bona fide one shall be on transferor.

(3) If any person transfers or disposes of any land after the appointed day in contravention of the provisions of subsection (1), the land so transferred or disposed of shall be deemed to be owned or held by that person in calculating the permissible area. The land exceeding the permissible area so calculated shall be the surplus area of the person and in case the area left with him after such transfer is equal to the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area. If the area left with him is less than the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area and to the extent of deficiency in it the land so transferred or disposed of shall also be deemed to be the surplus area. If there is more than one transfer, the deficiency of the surplus area shall be made up from each of the transferees in the proportion to the land transferred or disposed of to them."

Vesting of surplus area (1) The surplus area of a landowner shall from the date on which it is declared as such shall be deemed to have been acquired by the State Government for public purpose and all rights, title and interest (including the contingent increase, if any, recognised by any law, custom or usage for the time being in force) of all persons in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance;

Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.

(2) The right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished.

(3) The area declared surplus or tenants permissible area under the Punjab law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared in pending proceedings to be decided under the Punjab Law or Pepsu Law shall be deemed to have vested in the State Government with effect from the date of such declaration.

(4) For the purposes of determining the surplus area under this Act, any judgment, decree, or order of a court or other authority obtained after the appointed day and having the effect of diminishing the surplus area, shall be ignored.

In terms of section 12(3) reproduced hereinabove, which was inserted by the Haryana Act No. 17 of 1976, the area declared surplus under the Punjab Act for the Pepsu Act which is not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day i.e. 24th January, 1971. The provisions of the Haryana Act reproduced hereinabove came up for consideration before a Bench of five Hon''ble Judges of this Court in the case of Jaswant Kaur (supra), the relevant portion from this judgment is reproduced hereinbelow:

" 8. The provisions of sections 4 and 8, particularly section 8, appear on first impression to be inconsistent with the provisions of section 12(3) but as we said earlier it is our first duty to seek to avoid conflict by endeavouring to harmonise and reconcile every part so that each shall be effective. A close and critical examination of the provisions shows that they are not irreconcilable and all of them fit well into the general scheme of the Act. Section 8 has not been repealed expressly, by section 12(3) of the Act, nor can it be said, in the view that we are taking that it was repealed by necessary implication. Section 12(3) was introduced by way of amendment by Act XVII of 1976. By section 1(2) of the Amending Act, it is deemed to have come into force on 23.12.1972. A harmonious way of construing sections 8 and 12(3) would be to give full effect to section 8(1) upto 23.12.1972, that is to say, to exclude from the operation of section 12(3), the transfers made upto 23.12.1972 which are protected by section 8(1) of the Act, namely, (1) acquisition of land by the State or Central Government, (2) acquisition by a tenant under the Pepsu law or the Punjab law, or (3) acquisition by an heir by inheritance. Other transfers of land in excess of permissible area under the Punjab law or the Pepsu law would be protected if the transfers are made prior to 30.7.1958. We see no reason why sections 8 and 12(3) should not be construed in this harmonious manner so as to give effect to both the provisions. We find from the instructions issued from time to time that the Government has also construed the provisions in a similar manner.

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Shri Naubat Singh, the learned Assistant Advocate General, also agreed that we should harmonise section 8 and section 12(3) in the manner that we have done but he suggested that the date upto which transfers of three categorise specificied by us earlier as (1), (2) and (3) should be recognized, should be the appointed day (24.1.1971) and not the date on which section 12(3) came into force. We do not agree. Section 1(2) of Act XVII of 1976 expressly provides that the Act shall come into force on 23.12.1972. We must give some meaning and effect to it. In our view, the effect of section 12(3) coming into force from 23.12.1972 on section 8 is that transfers of three categories specified by us made upto 23.12.1972 would be excluded from the operation of section 12(3), that transfers of land in excess of the permissible area under the Punjab or Pepsu law would be protected if made before 30.7.1958 and that all other land not excepted by section 8 would be vested in the State Government with effect from the appointed day."

In terms of the law laid down by this Court in the above judgment, transfers of land in excess of permissible area under the Punjab Act or Pepsu Act would be protected if the transfers were made upto 30th July, 1958. Besides transfers made upto 23rd December, 1972 which are protected by Section 8(1) of the Haryana Act, namely (1) acquisition of land by the State or Central Government, (2) acquisition by a tenant under the Pepsu law or the Punjab law, or (3) acquisition by an heir by inheritance, shall also be excluded from the operation of Section 12(3) of the Haryana Act. Admittedly, in the present case, the alleged transfers in favour of the plaintiffs by decree dated 7th January, 1971 was not made upto 30th July, 1958. Further, this transfer is also not covered by any of the three exceptions mentioned above. It is also not the case for inheritance as the father of the plaintiffs died in 1987 during the pendency of the appeal before the first appellate Court. Thus in terms of the law laid down in the case of Jaswant Kaur (supra), the suit land which was declared surplus on 29th January, 1960 shall be deemed to have vested in the State Government with effect from the appointed day, i.e. from 24th January, 1971. It will also be relevant to point out here that the order, dated 29th January, 1960 by which the suit land was declared surplus, was not challenged by any of the plaintiffs thereafter and the said order has thus got finality. The provisions of Section 8(1)(b) of the Haryana Act relied upon by the learned counsel for the plaintiffs are also not applicable as the alleged transfer was not made after the appointed day.

As held by me, the suit land shall be deemed to have been vested in the State Government with effect from the appointed day, i.e. from 24th January, 1971. The decree, dated 7th January, 1971 shall, therefore, not have any bearing on the status of the said land. Even otherwise, the said consent decree was based on an alleged family settlement which was not produced before the trial court. In the case of Sher Singh (supra), it was held by Hon''ble Supreme Court that along with the order declaring the land of owners as surplus, a corresponding right and duty accrued to the Government to utilise the surplus area for the resettlement of the tenants and this is an indefeasible right that the Government secures. It was further held in this case that there is nothing in the Act which imposes any time limit for the Government to utilise the land for the purposes mentioned in the Act. In view of the law laid down by the apex Court in the above case, the order dated 28th August, 1980 by which the suit land was allotted to the private defendants is perfectly legal and valid.

As regards the possession of the suit land, the case of the plaintiffs is that they are in possession of the suit land throughout from the date when the said land was declared surplus. In this connection, they have placed reliance on the report dated 28th November, 1980 (Exhibit P2) of the Local Commissioner, wherein it was stated that the said land was under cultivation of the plaintiffs. The plaintiffs have also relied on the judgment dated 21st May, 1982 in the criminal case (Exhibit P.4) wherein it was held that at the time of murder of four tenants, the plaintiffs were in the possession of the suit land. Relying on this evidence, the learned Additional District Judge has given the finding that the plaintiffs are continuing to be in possession and even if they are unauthorised occupants, they can be evicted only in the manner authorised by law.

On the other hand, the case of the private defendants is that they were given vacant possession of the suit land by the concerned Revenue authorities during the period from 26th September, 1980 to 2nd October, 1980 vide reports of Roznamcha (Exhibits D.3 to D.29). They have also relied no the Khasra Girdawaries Exhibits D.32 to D.60 which also show that they had acquired possession of the suit land after its allotment to them. Relying on this evidence the learned trial Court had given the finding that the suit land was under active cultivation of defendants Nos. 3 to 29. The first appellate Court has, however, reversed this finding and has rejected the aforesaid evidence. The reasons for rejection of this evidence given by the first appellate Court are that as per report of the Local Commissioner, these lands were under cultivation on the date of filing the suit i.e. 19th September, 1980, how could it be that all these lands were found vacant by the Revenue authority within a period of 710 days on both sides.

From the records I find that when the Local Commissioner was appointed by the learned trial Court, the private defendants were not parties to the suit. The Local Commissioner, therefore, could not visit the suit land in the presence of the private defendants. On the other and, the documentary evidence, i.e. Roznamcha reports issued by the Revenue authority, show that the vacant possession of the suit land was given to the private defendants during the period from 26th September, 1980 to 2nd October, 1980 and the Khasra Girdawaries Exhibits D.32 to D.60 also show that the private defendants continue to be in possession of the suit land after the same was allotted to them and vacant possession of these lands was handed over to him. Relying on the said evidence, the learned trial court accepted the revenue records and rejected the reports of the Local Commissioner. It, therefore, cannot be said that the findings of the learned trial Court were perverse and were not based on any legal evidence. The first appellate Court has accepted the report of the Local Commissioner and has rejected the documentary evidence based on records of the Revenue Department, without giving any valid reason for rejection of the records of the Department. However, assuming that the plaintiffs were continuing to be in possession, their possession was unlawful and unauthorised ismuch as the suit and had vested in the State Government from the appointed day, i.e. 24th January, 1971 as stated hereinabove. Once it is found that the plaintiffs were unauthorised occupants and their possession was unlawful, an injunction could not be issued in their favour.

Here reference may be made to a recent judgment of the Supreme Court in Premji Ratansey Shah and others v. Union of India and others, (1994) 5 Supreme Court Cases 547 : 1995(3) RRR 11 (SC), wherein was held:

" 5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."

Reference may also be mae to a recent judgment rendered by a learned Single Judge of this Court in Mohan Lal v. Mohan Singh, 1995(3) PLR 564 wherein it was held as follows:

" The Courts have to take note of the fact that Government lands belong to the public at large and the community as a whole is entitled to enjoy the the properties belonging to the Government. In fact, the Government holds property as trustee of the people and therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a or a group of individuals is on possession is no possession in the eyes of law. Such a person cannot claim any right whatsoever no the basis of unlawful occupation of the public property and Courts would be justified in declining any assistance to such a person."

The decision in the cases of Smt. Kela Devi (supra), Buta Singh (supra) and Chuhar Singh (supra) relied upon by the learned counsel for the plaintiffs are not relevant to the facts of the present case as those decisions were rendered with regard to the provisions under the Punjab Act and not the Haryana Act. As regards the case of Southern Command Military Engineering Services Employees Cooperative Credit Society, (supra) it may be pointed out that in that case, there was no other documentary evidence based on records of the Government department. As regards the case of Mohan Lal (supra), it may be pointed out that the facts of that case were quite different to the facts of the present case and in that case, the eviction of the appellants was illegal as the provisions of law under which eviction was directed, has been held ultra vires. In that case, the appellants had not sought any decree of permanent injunction. The view taken by me on the facts of the present case is fully covered by the recent judgment of the Supreme Court in the case of Premji Ratansey Shah and others (supra).

In view of the above discussion, the appeal bearing No. RSA 23 of 1990 filed by the plaintiffs is dismissed with costs and the appeal bearing R.S.A. No. 1208 of 1989 filed by the private defendants is allowed and the order dated 28th August, 1980 by which the suit land was allotted to the private defendants is held legal and valid and the suit of the plaintiffs dismissed. It is further directed that in case the plaintiffs are in occupation of the suit lands, they shall hand over the vacant possession of these lands to the private defendants within two month from the date of the judgment.

Before parting with this case, I deem it necessary to state a few facts with regard to the time taken in the disposal of these appeals. While disposing S.L.P. (Civil) No. 7375 of 1989 which was filed by the plaintiffs and which arose out of the order, dated 3rd May, 1989, staying dispossession of the private defendants passed in R.S.A. No. 1208 of 1989, the following orders were passed by the Hon''ble Supreme Court on 8th February, 1990:

"The special leave petition is dismissed with the request to the High Court to dispose of the second appeal as early as possible but not beyond six months. Counsel for the petitioners submitted that the stay order granted by the High Court is against the observations of the Addl. District Judge holding that the petitioners are in possession. The petitioners may move the High Court for appropriate orders."

Thus in terms of the above order, dated 8th February, 1990 these appeals were required to be disposed of within six months i.e. before 8th August, 1990.

Records of the case show that after the above orders dated 8th February, 1990 were received, a learned Single Judge of this Court vide order, dated 12th April, 1990 directed that the appeals be listed for final hearing high up in the list preferably at No. 1 on 4th May, 1990. Thereafter application bearing No. CM 1797/90 was filed on 12th June, 1990 by the plaintiffs for restraining the private defendants from cutting trees in the suit land and from preventing the plaintiffs from sowing the Kharif crop from 1990. It was mentioned in this application that his application was being filed as the main appeals were listed for regular hearing before Hon''ble Court closed for summer vacation. Notice of this application was issued on 21st June, 1990. This application was dismissed by Hon''ble Mr. Justice N.C. Jain vide order, dated 16th January, 1991. On the same date, the learned Judge ordered that in view of the orders passed by the apex Court, these appeals be listed for final hearing at No. 1 on 31st January, 1991. On 28th January, 1992 by order of the said Hon''ble Judge, the Registry was directed to list these appeals before another Bench. Thereafter, since the appeals were not disposed of, another application bearing No. C.M. 1062 of 1993 was filed in R.S.A. No. 1208 of 1989 on behalf of the plaintiffs and in this application, it was prayed that ad interim order restraining private defendants from interfering with the possession of the plaintiffs in the land in dispute and harvesting the standing crops or in any manner damaging the standing crops sown in the suit land, be granted during the pendency of the appeals. This application was listed before Hon''ble Mr. Justice S.S. Grewal on 8th April, 1993 and notice of this application was issued for 30th April, 1993 and it was directed that the main appeals be listed on that day. Records, however, show that the appeals were not disposed of on the said date though two orders, dated 30th April, 1993 and 14th May, 1993 were passed by that Bench. The records show that thereafter the appeals were listed before Hon''ble Mr. Justice S.K. Jain on 2nd March, 1994 and judgment was reserved on 4th March, 1994. However, on 22nd March, 1994, the case was ordered to be listed for rehearing for 23rd March, 1994, on which date the case was ordered to be listed before some other Bench. It was only on 30th January, 1996 that the case was listed for the first time before me at Serial No. 343. The case was takne up for hearing on 26th February, 1996 but that day at the request of the learned counsel for the plaintiffs, the case was adjourned to 26th March, 1996, at item No. 1. The arguments commenced on 6th March, 1996 and were concluded on 12th March, 1996.