Hira Singh and Another vs Darbara Singh and Others

Shamsher Bahadur, J.—The sole question for determination in this appeal is whether the Civil Courts have any jurisdiction to try the suit u/s 36 of the Displaced Persons (Compensation and Re-Habilitation) Act, 1954?

The suit was brought by the brothers Hira Singh and Dr. Dheera Singh against their other three brothers, Darbara Singh, Ilazara Singh and Hari Singh (hereafter called Defendants 1, 2 and 3 respectively), as also Surjit Singh, Defendant 4, son of Dr. Dheera Singh, for a declaration that the Plaintiffs are entitled to the allotment of 3/5th -share in respect of the property which had been acquired by the brothers in Harunabad, District Bahawalpur (now in Pakistan). The parties are displaced persons and left properties in Sind, Kasur and Harunabad. We are not concerned in this litigation with the properties left at Kasur and Sind. According to the allegations in the plaint, some vacant site was acquired in Harunabad by Defendants 3 and 4. According to the plaint, it was a benami transaction in favour of the Plaintiffs and the three other brothers, Defendants 1 to 3, who all contributed towards the purchase of that land in equal shares. Dr. Dheera Singh, the second Plaintiff, got some constructions made on this vacant site consisting of six rooms on the ground floor and four on tire first and subsequently the Defendants 1 and 3, namely, Darbara Singh and Hari Singh, contributed their shares towards this construction. Hazara Singh, the second Defendant, did not contribute anything towards the construction and it was mutually agreed, according to the allegations in the plaint, that he abandoned his right to the property in favour of the second Plaintiff. It is thus that Plaintiff No. 1 claims 1/5th share and the second Plaintiff the 2/5th share in respect of the allotment which has been made in respect of this property. Darbara Singh and Hari "Singh, according to the Plaintiffs, are entitled to 1/5th share each in this property.

After the partition, the parties came to reside in village Narli of Patti Tehsil in Amritgar district. With regard to the submission of claims, it was agreed between the parties, according to the allegations made in the plaint, that Hira Singh, the first Plaintiff would submit a claim on behalf of himself and all the four brothers regarding the property left behind in Sind, while the second Plaintiff was to do the same in respect of the property at Kasur. Darbara Singh, the first Defendant, under this arrangement was to prefer the claim on behalf of himself and the other brothers in respect of the Harunabad property. It transpired subsequently that while the Plaintiffs kept to tins agreement, Darbara Singh preferred a claim for himself (13/20th share) and for Hari Singh (7/20th share) in respect of the property left behind in Harunabad. It is stated in the plaint in. paragraph 7 that the first Defendant was guilty of fraud and misrepresentation" in putting the claim for himself and the third Defendant alone to, the exclusion of the Plaintiffs. A declaration was accordingly sought to have the order of the Settlement Officer who had accepted the claim put forward by the first Defendant, set aside as it was based on fraud and misrepresentation. In order to complete the allegations of the plaint, it may be mentioned that in paragraph 9 it is averred that the Plaintiffs "requested Defendants 1 and 3 several; times to admit the Plaintiffs title to the property and the claim in dispute to the extent of 3/5th but the Defendants have denied the Plaintiffs title" thereby giving rise to the present cause of action.

The suit has been contested only by the first Defendant who has denied the allegations made in the plaint. The substantial issue related to the jurisdiction of the Civil Courts to entertain the suit and both the trial Judge and the lower appellate Court having reached a conclusion adverse to the Plaintiffs they have come in appeal to this Court.

Now u/s 36 of the Displaced Persons (Compensation and Rehabilitation) Act, "no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine". According to the reasoning of the lower Appellate Court, no fraud having been alleged, the suit could not be taken cognizance of by a Civil Court. To quote the words of the learned Judge:

There is no allegation that, in the course of proceeding on his application, for the verification of the disputed claim, the contesting Defendant practised any fraud on the Claim Officer who verified that claim. In these circumstances, the allegations made in the plaint do not bring the case within the jurisdiction of the Civil Courts.

This observation of the learned Judge, which is apparently the sole basis of the finding, is obviously opposed to the assertions made in the plaint to which I have adverted in some detail. A definite agreement between the three brothers, Plaintiffs 1 and 2 and Defendant 1 is set up whereby verified claims in respect of three sets of properties had to be preferred on behalf of all the brothers. It-is again the foundation of the claim of the Plaintiffs that while they adhered to the agreement in making the claim on behalf of all the brothers, in respect of the properties at Kasur and Sincl, Defendant 1 fraudulently by misrepresentation preferred a claim only for himself and the third Defendant claiming 18/20th and 7/20th shares in Harunabad property. It Is mentioned in so many words in paragraphs 7 and 8 of the plaint that the first Defendant not only practised fraud but also induced the Claims Officer to act on such representations. It is difficult to conceive what more the Plaintiffs were expected to aver to support their claim on basis of fraud. The position that the jurisdiction of a Civil Court is at once invoked when allegations of fraud or mala fides are made has not been seriously contested or challenged. In a Division Bench authority of the Pepsu High Court consisting of Chief Justice Teja Singh and Passey, J. in Shanti Parshad v. Kunj Lal AIR 1053 P&H151, it was said that where a particular decree was obtained by fraud from a revenue Court the dispute assumes a civil nature and is cognizable by a Civil Court. What is true of a revenue Court applies with equal force to the decision of the Settlement authorities under the Displaced Person; (Compensation and Rehabilitation) Act.

In the last analysis, the question involved is that of title and it has been held by a Full Bench of this Court In Mst. Jafran Begum Vs. Custodian Evacuee Property, Punjab and Others, , that if the question as to whether certain property is or is not evacuee property raises a question of title it may be determined finally by Civil Courts. It was further held that whether in a particular case a question of title does or does not properly arise has to be decided on facts and no general rule about it can be laid down.

Looking at the allegations made in the plaint which raise the question of jurisdiction, 1 am of the view that the question of title is definitely raised and the claim of the Plaintiffs is based in substance on the fraud which has been practised by the first Defendant The Civil Courts, in such a situation, must assume Jurisdiction and the case ought to have been entertained by the trial Court ''The appeal accordingly must be allowed and the decrees of the Courts below set aside. The trial Court,'' before whom the parties are directed to appear on 15th of January, 1964, would proceed with the trial of the case in accordance with law. The costs to this appeal would abide the event.