Jawala Singh vs Harnam Singh

A.L. Bahri, J.

This appeal is by the plaintiffs against the judgment and decree dated December 28, 1978, passed by the Additional District Judge, Patiala, whereby appeal filed by the plaintiffs was dismissed and the judgment and decree of the trial Court was affirmed. The trial Court on September 29, 1976, had partly decreed the suit filed by the plaintiffs. The suit was decreed with respect to the land comprised in Khasra No. 507, whereas with respect to the other land the suit was dismissed.

Jawala Singh and others filed the suit for possession of land measuring 31 Bhighas 5 Biswas comprising Khewat/Khatvani Nos 31/88 Khasra Nos 425(65), 432(65), 443(65), 450(65) and Khatvani No. 89, Khasra No. 507(65), situated at village Kakrala, district Patiala. The plaintiffs, namely Jawal Singh, Kapoor Singh, Kesar Singh and Gurnam Kaur, and Joginder Kaur children of Jiwa Singh were owners of the land is dispute. Joginder Kaur died leaving behind plaintiff Nos. 5 to 11, her children. In this manner, all the plaintiffs claimed ownership in the land in dispute i.e. Jiwa Singh having purchased it from Kuldip Singh landowner. Harnam Singh, Bhan Singh and Chhota defendants were alleged to be in illegal and unauthorized possession of the land in dispute. Since they refused to vacate the same, the suit was filed.

The aforesaid defendants contested the suit, denying ownership of the plaintiffs over the land in dispute. According to them, one Kuldip Singh was a big land owner, who transferred the land in dispute to Jiwa Singh on December 3, 1953. Jiwa Singh was father of the plaintiff Nos 1 to 4 Jawala Singh & others. The said transfer was against the provisions of the Presidents Act of 1953. The revenue authorities ignored the aforesaid transfer. The defendants claimed to be owners of the land in dispute by virtue of sale certificates issued by the prescribed authority in their favour on February 6, 1963 and March 21, 1963. They also pleaded that the civil court had no jurisdiction to entertain the suit in view of the provisions of Section 47 of the Pepsu Tenancy and Agricultural Lands Act, 1955. Jiwa Singh aforesaid was a contesting party in the proprietary rights case before the revenue authorities and, thus, the plaintiffs were debarred from bringing the suit. The aforesaid pleas were taken by Harnam Singh and Bhan Singh defendants, whereas Chhota defendant No. 3 in a separate written statement raised identical pleas. He also claimed proprietary rights in his favour having been granted on December 31, 1959. He also claimed adverse possession for more than 12 years.

In replication the plaintiffs controverted the allegations of the defendants. The trial proceeded on the following issues :

1) whether the plaintiffs are owners of the suit land ? OPP

2) Whether the defendants are in illegal and unauthorized possession of the suit land ? OPD

3) Whether this Court has got no jurisdiction ? OPD

4) Whether the plaintiffs have no locusstandi to maintain the suit, as alleged in para 2 of the legal defects in the written statement ? OPD

5) Whether defendant No.s 1 & 2 have become owners by virtue of the sale certificate issued by the prescribed authority ? OPD

6) Whether defendant No. 3 has become owner by way of adverse possession ? OPD3

7) Relief.

Issue Nos 1 and 5 were decided together by the trial Court. Plaintiffs were held to be owners of the land comprised in Khasra No. 507. With respect to the remaining land, they were held to be in possession of the saledeed made by Kuldip Singh, however, they were not held to be owners as the land had been transferred to Harnam Singh and Bhan Singh defendants under salecertificates Exhibits D/1 D/8 and D/Y. Under issue No. 2 the defendants were held to be in lawful possession of the land except the land comprising Khasra No. 507, which was in possession of Chhota defendant who was not proved to be owner, but was in illegal and unauthorized possession. Issue No. 3 was decided against the defendants. Civil Court had the jurisdiction to try the suit. Issue No. 4 was decided against the defendants as no evidence was produced by them that Jiwa Singh was a party in case of grant of proprietary rights. Therefore, the plaintiffs were not debarred from bringing the suit. Under issue No. 6 it was held that defendant Chhota Singh had not become owner by adverse possession. In view of the findings aforesaid, the plaintiffs'' suit with regard to the land comprising khasra No. 507 was decreed and with respect to the remaining land it was dismissed. The lower appellate Court on appeal by the plaintiffs affirmed the decree and judgment of the trial Court by dismissing the appeal. Hence, this appeal by the plaintiffs.

During the pendency of the appeal, Jawala Singh appellant died on May 27, 1988. Civil Miscellaneous application No. 222C of 1992 was filed on January 15, 1992, for bringing in on record Devinder Singh others, legal heirs of Jawala Singh deceased on record. Gurnam Kaur appellant died on May 8, 1989, and on January 15, 1992, Civil Miscellaneous application No. 219C of 1992 was filed for bringing on recorded her legal heris, namely Harinder Kaur and others.

Shri Satya Parkash Jain, learned counsel for the respondents, has argued that the appeal aforesaid abated on the death of two appellants, Jawala Singh and Gurnam Kaur, as their legal heirs were not brought on record within time and no application for setting aside abatement was filed much less within time. The appeal qua other appellants cannot proceed as the possibility of passing contrary decrees cannot be ruled out, as there was common cause for all the plaintiffs i.e. deceased appellants and the remaining appellants. On the other hand, Shri Jagan Nath Kaushal, Senior Advocate appearing on behalf of the appellants, has referred to the amendment made in the Code of Civil Procedure, Order 22 Rule 3(2), by the High Court and has argued that the death of some of the appellants will not affect the decision to be made in appeal which remained pending when the amendment of the rule aforesaid was made. Order 22 Rule 3(2) of the Code of Civil Procedure, as amended by High Court of Punjab and Haryana vide notification dated February 21, 1992, reads as under :

"Where within the time limited by law no application is made under subrule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist."

Earlier Order 22 Rule 4(3), which refers to the procedure to be followed in case of death of one of the several defendants, or of sole defendant, was amended by the High Court vide notification dated March 25, 1975, which reads as under :

"Where within the time limited by law no application is made under subrule (1) the suit shall not abate against the deceased defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as it had been pronounced before death took place."

The aforesaid provisions of Order 22 Rule 4(3) were under consideration of Division Bench of this Court in Banta Singh v. Santi and others, 1977 PLJ 452, and it was held as under :

"Rule 2B and subrule (3) to rule 4 of Order 22 of the Code came into force with effect from March 17, 1975. The amendments noticed above were not enforced retrospectively and the question of abatement of the appeal has to be determined according to the law prevalent at the relevant time. As noticed above, the second appeal in the present case stood abated on November 1, 1972, which created vested right in favour of the respondent. It is settled law that vested right cannot be taken away by a future amendment in the law unless the amendment is expressly made retrospective or there is some indication in the provision which makes it of retrospective operation. The amendments noticed above have not been made expressly retrospective in operation nor anything inherent in these rules has been brought to our notice to persuade us to hold that they have retrospective operation so as to revive even the appeals which already stood abated long before their enforcement."

On the reasoning recorded in Banta Singh''s case, there is no scope for taking a contrary view with respect to the applicability of Order 22 Rule 2(3) to the case in hand. The amendment made in 1992 as referred to above, does not expressly or by necessary implication suggest that it would revive the appeals, which have already abated. Thus, this amendment is to apply prospectively and not retrospectively to revive the appeals which already stood abated under the law prevalent at the relevant time. When two of the appellants died, as mentioned above, Order 22 Rule 3(2) which was applicable, was as under :

"(2) Where within the time limited by law no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff if concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred indefending the suit, to be recovered from the estate of the deceased plaintiff."

Qua the two appellants namely Jawala Singh and Gurnam Kaur, the appeal already stood abated as no application for bringing on record their legal heirs, as required under Order 22 Rule 3(1) was filed within the time prescribed by law.

The next question for consideration would be as to whether appeal of the other appellants could proceed ? Supreme Court has already dealt with this subject. Reference may be made to two such decisions; In Rameshwar Prashad and others v. Shambehari Lal, Jaganath and another, AIR 1963 Supreme Court 1901, it was observed as under :

"An appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22 Rule 3."

The ratio of the aforesaid decision was followed in Sri Chand v. M/s Jagdish Pershad Kishan Chand and others, AIR 1966 Supreme Court 1427.

Since applications for bringing on record legal heirs of the deceased appellants were not filed within the period of 90 days from the death of the appellants and further period of 60 days thereafter for setting aside abatement, both the applications filed in the present appeal are, thus, barred by limitation. The only ground for condoning delay mentioned in these applications is that applicants did not know if they were to inform the Court regarding the death of the appellants. The other fact mentioned is that they had engaged Mr. I.S. Tiwana (who was subsequently elevated to the Bench) and after his death, they had engaged another counsel and came to know that they were to implead legal representatives of the deceased appellants on the record. Hence, they moved the applications. Such general allegations can hardly be taken into consideration for condoning the delay. Mere ignorance of law that they were supposed to inform the Court about the death of two appellants will not be sufficient to condone the delay. In such like matters, the appellants were required to explain this inordinate long delay. In Ranbir Singh v. Industrial Finance Corporation of India, 1979 PLJ 383, while referring to the provisions of the Order 22 Rules 4 and 9 of the Code of Civil Procedure, it was observed that when application for setting aside abatement was filed late, a valuable right accrued to the opposite party on account of lapse of time and the person seeking condonation of delay was expected to explain delay for the entire period. In that case there was no explanation for the delay even after death of the defendant came to the knowledge of the appellant.

The appeal having abated qua the two deceased appellants, the further question for consideration is as to whether it is abated as a whole on the death of two appellants or the same could proceed qua the remaining appellants. From the facts narrated above, it is clear that the plaintiffs had a common cause for approaching the Court for claiming possession of the land. Their suit was dismissed qua the land comprising khasra Nos. 425, 432, 443 and 450, whereas it was decreed with respect to the land comprising Khasra No. 507. In present appeal the claim of the appellants related to the land comprising three khasra numbers referred to above, which defendants Harnam Singh and Bhan Singh claim to have purchased under sale certificates, which were held to be valid. Qua the deceased appellants, the finding regarding the sale certificate in their favour stands affirmed. While allowing the appeal, such finding has to be reversed. That being the position, the appeal qua other appellants in view of the decisions of the Supreme Court in Rameshwar Parshad''s case as well as in Sri Chand''s case (supra), could not proceed and has to be dismissed on that account.

Since the matter has been argued on merits, it is proposed to deal with other points raised. Shri Jagan Nath Kaushal, learned counsel for the appellants, has argued that since the appellants or their predecessorininterest were not parties in the proceedings wherein salecertificates were issued by the prescribed authorities, the appellants are not bound by the same and they could successfully challenge the same in the present suit. On the other hand, Shri Satya Parkash Jain, learned counsel for the respondents had referred to the provisions of Sections 43 and 47 of the Pepsu Tenancy and Agricultural Lands Act and has argued that the jurisdiction of the civil Court was barred to entertain the suit challenging salecertificate issued in favour of the defendants under the provisions of the aforesaid Act. Section 47 of the Act reads as under :

"Bar of jurisdiction :

(1) No Civil Court shall have jurisdiction to settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority.

(2) No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court."

Section 22 of the Act confers upon the tenant a right to acquire proprietary rights. Section 23 provides for determination of compensation to be paid to the landlord in respect of conferring proprietary rights on a tenant. On payment of the first instalment of compensation in accordance with provisions of subsection 2 of Section 23, the prescribed authority is to issue a certificate declaring the tenant to be the landowner in respect of the land for which proprietary rights are conferred. The matter was under consideration of the Full Bench of this Court in State of Haryana v. Vinod Kumar, 1986 PLJ 161 : 1987 R.R.R. 81. The earlier decision of Full Bench in Dhaunkal Sheo Ram v. Man Kaur Ram, 1970 PLJ 402 was overruled and it was held that civil court''s jurisdiction could be expressly barred by the Statute. However, orders passed by the Tribunal under the special jurisdiction in violation of the provisions thereof or the principles of natural justice would be a nullity and could be challenged in the civil court even if there was bar of jurisdiction provided under the statute. Particular reference was made to an order passed against a person, who was not a party to the said proceedings. In such circumstances, civil suit for declaration that such order was ineffective and non est was maintainable under Section 9 of the Code of Civil Procedure. The main contention of learned counsel for the appellants is that since Jiwan Singh father of the appellant was not a party in the proceedings initiated by the defendants for grant of proprietary rights, the order passed thereon would be nullity and not binding upon the plaintiffs. It is in this respect that further reliance has been placed on the earlier decision of this Court in Nachhitar Singh v. The Financial Commissioner, 1968 PLR 431, a case under the Pepsu Tenancy and Agricultural Lands Act. While referring to the provisions of Section 43(1) of the Act, it was observed as under :

"Two principles are to be kept in view : the first is that where the language of a statute is susceptible of two constructions, the one which will advance and fit in with the scheme and purpose of the Act should be preferred. The second principle is that the exclusion of the jurisdiction of civil court to determine intricate questions of right of title to immovable property is not to be readily inferred. Every presumption should be made in favour of the jurisdiction of a Civil Court and all statutes excluding explicitly or by necessary implication the jurisdiction of the ordinary civil courts have to be strictly construed. Section 47 of the Act says that no Civil Court shall have jurisdiction to settle, decide or deal with any matter, which is under this Act, required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority. Reading Sections 43 and 47 together, it is clear that the summary jurisdiction conferred on the Collector by Section 43 is an exclusive jurisdiction. Clause (b) of Section 43(1) applies to the case of a person, who but for the provisions of this Act, would be entitled to the use and occupation of the land."

Further reliance has been placed on the decision of this Court in Saran Gir v. Manjit Singh, 1987 PLJ 409 : 1988(1) RRR 193. That was a case where in a declaration was sought in the suit that the decree was obtained by the defendants fraudulently and, thus, operative and not binding on the plaintiff''s rights. It was observed that there was inherent power of the Court to entertain such suits for possession without avoiding the decree. Both the Courts after observing that the defendants had pleaded that Jiwa Singh had entered contest in the case of grant of proprietary rights decided against the plaintiffs as no evidence was produced.

The salecertificates on which reliance has been placed may now be referred. Exhibits D1, D8 and DY are the salecertificates issued by the prescribed authority. Learned Counsel for the appellants while referring to these documents has argued that the name of Jiwa Singh was not mentioned while described the names of the parties of the case. Thus it should be assumed that Jiwa Singh was not a party and that no notice of such proceedings was issued to Jiwa Singh. This contention is devoid of merit. These salecertificates were issued in compliance of the orders passed on the files. The appellants could only succeed if they could prove that Jiwa Singh was not a party in the proceedings for grant of proprietary rights and, thus, orders passed in such proceedings were not binding on them. This could be proved that Jiwa Singh was not a party to such proceedings for determination of compensation under Section 23(2) of the Act. It was for the plaintiffs to show that Jiwa Singh was not a party thereto. The issuing of salecertificates is a declaration of transfer of proprietary rights as provided under Section 23(4) of the Act. There is no force in the contention of Shri Jagan Nath Kaushal that the defendants could not be treated as owners till they pay all the instalments of the compensation. On payment of the first instalment of compensation. On payment of the first instalment of compensation, certificate is required to be issued declaring proprietary status under Section 23(4) of the Act and such a certificate is conclusive evidence of vesting of the rights as provided under Section 23(5) of the Act. Such orders cannot be challenged in Civil Court on merits as held by this Court in Raj Mal v. Garib Dass, 1977 PLJ 383. The Courts below rightly held that the plaintiffs were not owners of the land covered by such salecertificates. Findings of the Courts below on issue No. 1, are, therefore, confirmed.

After holding that the plaintiffs were not owners of such land, as discussed above, the Courts below were wrong in deciding Issue No. 4 against the defendants for not producing the records of the proceedings of the grant of proprietary rights. Section 47 of the Act would operate as bar for the maintainability of the suit.

Shri Kaushal relied upon the judgment of this Court in Punjab Singh alias Punjab v. Shyam, 1992 PLJ 94 : 1992(1) RRR 334, wherein it was held that a person, who was not party to order passed under any act, was not supposed to challenge it under the provisions of this act, as the same would be void or non est, and could be challenged in a suit. No benefit can be derived by the appellants from the aforesaid decision as on evidence the plaintiffs have failed to establish that order granting compensation was without impleading Jiwa Singh as a party, as discussed above.

Plaintiffs'' suit for possession is otherwise also not maintainable in Civil Court. Copies of the revenue record Exhibits PX/2, PX/3, and PX/5 show the defendants in possession as tenants. Suit for possession against tenants. Suit for possession against tenants could not be filed in Civil Court. Issuing of the salecertificates pre supposes existence of earlier tenancy.

For the reasons recorded above, this appeal is dismissed with no order as to costs.

Both C.Ms. dismissed.