Gian Devi and another vs Gulzar Singh and others

J.V. Gupta, J.—The Plaintiff-Petitioners have filed this revision petition against the order of the Additional District Judge, Amritsar, dated 19th November, 1979, whereby the order of the trial Court returning the plaint to the Plaintiffs, has been maintained.

In May, 1964, Surjan Singh and Gurdit Singh sons of Jhanda Singh (predecessors-in-interest of the present Plaintiffs) filed a suit for permanent injunction against the Union of India and others to the effect that the suit land was not an evacuee property and thus was not liable to be sold as such by the Union of India and also restraining it from auctioning and alloting the same as an avacuee pro-and thus interferring in their possession. This suit was contested on behalf of the Union of India. In the written statement filed by it, a preliminary objection was taken that the civil Court could not question the finality of the Competent Officer''s orders vide Section 18 of the Evacuee Interest (Separation) Act, 1951. The copy of the written-statement is Exhibit P-7 on the record. On the pleadings of the parties in that suit, the following issues were framed.

Whether civil Courts have jurisdiction to try this case ?

Whether the Plaintiffs served a valid notice u/s 80 the CPC on the Defendants ?

Whether the suit is barred by rule of res judicata ?

Whether Sadhu and Dhanna are evacuees ? If so, to what effect ?

Whether the Plaintiffs have cause of action to bring the suit ? On issue No. 1, it was held that the Civil Court had the jurisdiction to try the suit. As regards the relevant issue No. 4, the finding was that "the above discussed evidence shows that Sadhu and Dhanna who were admittedly Brahmins never migrated to Pakistan nor converted themselves as Muslims. Rather they died as Brahmins in the riots of 1947 in their own village and there dead bodies came to be seen by a number of villagers referred to above and were cremated in the village. There appears thus no force in the testimonies of the D. Ws and they do not appear to be truthful witnesses. That being so, Sadhu and Dhanna, are not evacuees". On this finding, the Plaintiffs'' suit was decreed and, consequently, a decree for permanent injunction against the Union of India restraining it from auctioning or alloting the property in dispute to any person treating it to be an evacuee property and from interferring in Plaintiffs'' possession over it as mortgagees, was passed on 19th February, 1966, vide judgment copy of which is Exhibit P-2 on the record. An appeal against this judgment and decree of the trial Court was dismissed by the learned Additional District Judge Amritsar, as time barred on 4th January, 1968, vide judgment copy of which is Exhibit P-3 on the record.

The present suit giving rise to this petition was filed in April 1972 by Surjan Singh substituted after death by Smt. Gian Devi widow and Ram Murti, son of Surjan Singh against Gulzar Singh and other permanent injunction that the suit land is not an evacuee prorperty and is not liable to be sold as evacuee property by the Dominion of India and as consequential relief, suit for permanent injunction restraining Defendant No. 1, i.e., Gulzar Singh from interferring or distributing or taking the possession of the suit land from the Plaintiffs and Gurdit Singh. In para No. 1 of the plaint, the facts of the earlier case referred to above have been given and on the basis of that judgment, it has been claimed that the Tehsildar, Sales in spite of the raid judgment and decree, has again interferred in the right of the Plaintiffs by alloting this land illegally and without jurisdiction, to Gulzar Singh, Defendant No. 1 who has obtained warrants for possession and is trying to take possession of the suit land. It was further claimed that in view of the said judgment in earlier suit which amounts to res judicata, the Plaintiff''s rights as mortgagees and Sadhu and Dhanna''s title as owner over the suit land, had become final and this point cannot be re-opened. The suit was contested by Gulzar Singh Defendant No. 1. In the written statement, a preliminary objection was taken that the jurisdiction of the Civil Court is barred under the evacuee law property being a composite property and Competent Offices having already separated the evacuee interest, the Civil Court had no jurisdiction to try the present suit. However, no copy of the order of the Competent Officer was placed on the record. On the pleadings of the parties, various issues were framed, but issue No. 3 relationg to the jurisdiction of the Civil Court, was tried as a preliminary issue. The trial court came to the conclusion that the Civil Court has no jurisdition to entertain the same. In appeal, the learned Additional District Judge has affirmed this finding of the trial Court. Feeling aggrieved against this concurren finding of the two Courts, the Plaintiffs have came up in revision to this Court.

Mr. H.L. Sarin, Senior Advocate, learned Counsel for the Plaintiff-Petitioners, has vehemently contended that in view of the earlier decision of the Civil Court vide Exhibit P-2, wherein it has been held that Sadhu and Dhannu were not evacuees had become final between the parties, and, therefore, the Union of India or the Rehabilitation Authorities had no right to allot the suit property to Gulzar Singh, Defendant-Respondent, after that decree in favour of the Plaintiffs, he has assailed the finding of the two Courts below on the ground that if subsequently a different view has been taken by the Supreme Court, that will not render the earlier decree infrutuous as regard the parties. In support of his contention, he has cited Surian Singh Vs. State of Punjab and Others, , and Avtar Singh v. Jagjit Singh 1979 P.L.J. 495.

After hearing the learned Counsel for the Petitioners, I find force in his contentions. The question to be decided in this revision petition is whether the judgment of the Supreme Court in Custodian of Evacuee Property Punjab and Others Vs. Jafran Begum, , has rendered the decree of the Civil Court passed earlier in the year 1966 as infuctuous, on the ground that the Civil Court had no jurisdiction to pass such a decree ? In my considered opinion to held it so is not waranted either by any statute or by any binding precedent. The Courts below have placed reliance on Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, , for comming to the conclusion that the decree passed earlier has become infruotuous as the Civil Court had no jurisdiction to pass such a decree. I have gone through the judgment carefully and the (sic) is distinguishable on the facts of that case. Moreover, in para 10 therefore, it has been observed that "it is true that in determining the application of the rule of res judicrta the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot bore-opened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between, the same parties." Keeping these observations in view, it is clear that in the earlier suit it was categorically decided on a question of fact that the two persons Sadhu and and Dhanna from whom Surjan Singh and Gurdit Singh (predecessors-in-interest of the present Plaintiffs) had taken the land on mortgage, were not evacuees. This is a pure finding of fact between the parties. If this dispute was not determined in the earlier suit and only the question of jurisdiction of the Civil Court was involved, then perhaps it may be urgued on the basis of the judgment in Mathuram Prasad''s case (supra) that the same is not res judicata between the parties. In the present case, from the evidence on the record, it is quite clear that the Union of India never pleaded that the property had ever been declared as evacuee property under the Adminisiration of Evacuee Propetty Act, 1950, nor any order of the Competent Officer under the Evacuee Interest (Separation) Act, 1951, was ever placed on the record. In this situation, the dictum in Jafran Begum''s case (supra) is also not attracted as regards the facts of the present case. In the present suit, though in a way the Plaintiffs want the suit property to be declared as non-evacuee, but virtually the suit is based on the basis of the earlier judgment in their favour. The decree in the earlier suit having become final between the parties, the Union of India or its Officer had no right to treat the same as evacuee property after that decree. It is particularly, so because the suit property had not been shown to have been declared as evacuee property by any competent authority under the Evacuee Laws. In the absence of any such declaration, the jurisdiction of the Civil Court is not barred.

For the reasons recorded above, this petition succeeds, the order of the lower apellate Court is set aside and the case is remanded back to the trial Court, to register the same at its original number and to proceed with the same in accordance with law. The parties though their counsel are directed to appear in the trial Court on 9th June, 1980.