Khalsa Motor Co., Hissar vs Haryana State and ors.

G.R. Majithia, J.

M/s Khalsa Motor Co., Hissar, the unsuccessful plaintiff, has come up in regular second appeal against the judgment and decree of the first appellate Court dated October 15, 1988 affirming on appeal the judgment and decree of the trial Court dated November 20, 1986.

The facts The plaintiff sought declaration to the effect that the land measuring about 450 Sq. Yards described as ''ABCDEF'' in the site plan attached with the plaint and situated in the revenue estate of Hissar between Gurdwara Siri Guru Singh Sabha and Talaqiu Gate, HissarSirsa Road (hereinafter referred to as the ''disputed property'') is owned by it and a perpetual injunction was sought against the defendantrespondents from dispossessing it from the disputed property illegally. The disputed property was initially taken on lease by the plaintiff from Municipal Committee, Hissar (respondent No. 2) and it paid rent to the lessor till 1972. The plaintiff made improvements on the disputed property by spending huge amount. It installed a Petrol Pump, an HSD Pump, Sale Room etc. The Collector, Hissar, vide his order dated September 25, 1970, passed under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (for short, '' the Act'') at the instance of respondent No. 1, directed the plaintiff to vacate the land measuring 18''x 18'' = 324 Sq. Ft. (petrol pump office ) and 21'' x 30 1/4'' = 646 Sq. Ft. plus 12'' x 23 1/4'' = 279 Sq. Ft. plus 10''x 10 1/2 = 105 Sq. Ft. Total 1030 Sq. Ft. P. Rooms within 30 days from the announcement of the order. The order of Collector, Hissar was unsuccessfully challenged in appeal. The vires of this Act was also unsuccessfully challenged in Civil Writ Petition No. 5261 of 1982 and the Special Leave Petition in the apex Court was dismissed as withdrawn since the plaintiff wanted to move the High Court for review of the order passed in Civil Writ Petition No. 3394 of 1970. The disputed property did not vest in respondent No. 1 and Collector, Hissar had no jurisdiction to entertain the petition under Section 4 of the Act since the disputed property was not public premises as defined in the Act.

The defendantrespondents controverted the pleas made in the plaint and from the pleadings of the parties, the following issues were struck :

(1) Whether the plaintiff is in possession of the disputed land measuring about 450 Sq. Yards as owner ? If so, since when and to what effect ? OPP

(2) Whether the disputed site in occupation of the plaintiff measuring about 450 Sq. Yards is comprised in preconsolidation Khasra No. 2988 and postconsolidation Khasra No. 3188 within Lal Lakir ? If so, to what effect ? OPP

(3) Whether the disputed site is a public premises within the meaning of Haryana Public Premises (Eviction & Rent Recovery) Act, 1972 ? OPD

(4) Whether the suit is barred by the principles of res judicata by virtue of decision of Civil Writ Petition No. 3394 of 1970 by the Punjab & Haryana High Court and the order of the Collector, Hissar dated 25.9.1970 ? OPD

(5) Whether the suit is barred by Order 2 rule 2, C.P.C. ? OPD

(6) Whether the suit is liable to be dismissed for nonservices of notice u/s 80 C.P.C. ? OPD

(7) Whether the suit is timebarred ? OPD

(8) Whether the suit has not been properly valued for the purpose of court fees? If so, to what effect ? OPD

(9) Whether the plaintiff is entitled to the declaration prayed for ? OPD

(9a) Whether the Civil Court has no jurisdiction to try this suit ? OPD

(9b) Whether the suit is not maintainable in the present form ? OPD

(9c) Whether the order of the Collector dated 25.9.1970 is void and liable to be set aside in view of the grounds mentioned in the plaint ? OPD

(10) Relief.

The learned appellate judge found that the disputed property was abutting the National Highway and held that the order of Collector, Hissar passed under the Act directing the plaintiff to vacate the public premises in its illegal possession was bad and that it could not be held that the disputed property was part of abadi deh and vested in the person in possession of it. Under issue No. 4, it was held that the judgment rendered in Civil Writ Petition No. 3394 of 1970 operated as res judicata in the instant case. Under issue No. 5, it was held that the suit was not barred under Order 2, rule 2, Civil Procedure Code. Under issue No. 6, it was held that before filing the suit, permission was obtained vide order dated February 6, 1981 and the suit was not bad for want of notice under Section 80, Civil Procedure Code. Under issue No. 7, it was found that the suit was beyond limitation and the court on facts found that the order of the Collector was not void but voidable. The plaint was found to be properly valued for purposes of courtfee. It was held that the Civil Court had jurisdiction but the order of Collector, Hissar dated September 25, 1979 was legal and valid and in view of this order, the plaintiff had no right to seek the declaration sought for in the plaint.

In the appeal the learned counsel for the appellant has strongly urged that there is no legal evidence on record to prove that the disputed property is a part of public premises and in the absence of any evidence, the order of the Collector declaring it to be a public premises is a nullity. The Collector only relied upon a map in which the disputed property is shown to be adjoining the National Highway and the site plan per se is not sufficient to hold that the disputed property falls within the ambit of public premises as defined in the Act.

I find substance in this submission of the learned counsel for the appellant. The plan, Ex. D1 only gives the measurement of the area encroachment upon. A part form the plan, there is no other evidence that the disputed property is a public premises and vests in this States. The plan Ex. D1, is a Chart Land Plan of DelhiMultanHissar Road Mile 103. Presumption of correctness will attach to it on the ground that it was prepared by a public servant in discharge of public duties, but it cannot be treated to be an evidence of the fact that the property mentioned in the plain is a public premises. The purpose of producing this plan appears to be only to have the locations of the National Highways. It cannot be used as the basis for holding that the property described therein is a public premises. Once it is held that the site plan cannot furnish an evidence for the State to prove that they have a title over the particular property; the basis of the order of eviction stands eroded and in the absence of any other evidence, there is not escape for the conclusion that the Collector had wrongly held that the disputed property was a public premises and he could pass an order under the Act. This conclusion receives corroboration from the written statement filed by respondent No. 2 in this Court in reply to the averment made in C.W.P. No. 3394 of 1970. In the written statement, Ex. P.1, it was categorically pleaded by Municipal Committee, Hissar that the disputed premises is a part of Khasra No. 3138 and was under their sole ownership and they supported their ownership on the base of the settlement of 1909. It was also stated that in the year 194142 Khasra Register of Municipal Committee, Hissar was prepared on the basis of the revenue record under the guidance and control of the then Deputy Commissioner, Hissar and according to the Khasra Register, the disputed property falls in Khasra No 417 and this is not owner by respondent No. 1. The written statement was verified as per the rules by the Administrator according to the knowledge derived from the office records and believed to be correct. According to the written statement, the disputed property did not belong to respondent No. 1 but on the contrary it was the property of defendantrespondent No. 2. This plea of defendantrespondent No. 2 was not controverted by respondent No. 1. Thus, it is difficult to hold on the basis of the plan, Ex. D1, that the premises in disputed is a public premises as defend under the Act, more particularly when defendantrespondent No. 2 took a positive stand in the earlier litigation (CWP No. 3394 of 1970) that the disputed property is not part of the public premises belonging to respondent No. 1.

The Courts below proceeded to hold that the judgment rendered in C.W.P. No. 3394 of 1970 will operate as rejudicata in the instant case. I have gone through the judgment rendered in the said writ petition. There was no decision that the disputed property is a public premises as defined under the Act. That was a material and substantial issue between the parties and the State of Haryana and Municipal Committee, Hissar were parties to the civil writ petition. Municipal Committee, Hissar challenged the claim of the State that the disputed property was a part of public premises and, on the contrary, it had pleaded that the disputed property was its property. No decision was rendered that the disputed property was a public premises as defined under the Act and the decision of the Collector could not be assailed. In the absence of any finding on this issue, the decision rendered in C.W.P. No. 3394 of 1970 will not operate as resjudicata. The doctrine of finality of judgment or the principle of rejudicata is founded on the basic principle that where a Court of competent jurisdiction had decided an issue, the same ought not be allowed to be adjudicated again and again. Such a doctrine would be wholly inapplicable to the case where no decision was rendered on the material issue.

The learned lower appellate Court has held the suit to be beyond limitation only on the ground that the order of Collector, Hissar was held by it to be valid. In the earlier part of the judgment, I have already held that the order of the Collector, Ex. P24, was void. The bar of limitation is not attracted and the suit cannot be held to be beyond limitation.

I do not find any substance in the argument of the learned counsel for the appellant that the plaintiff has become the owner of the disputed property since it is a part of abadi deh and it is in possession of the same since 1950. The plaintiff itself took the property on lease from Municipal Committee, Hissar and it continued to pay rent to the Municipal Committee till the year 1972. It never surrendered possession of the disputed property to the Municipal Committee before asserting its title as an owner. There is a presumption in law that the tenant continues to hold over till by some tangible act he asserts his title and that was permissible only when he surrenders his right as a tenant and alleges hostile title to the knowledge of the lessor. In the instant case, this is not permissible. The plaintiff cannot be allowed to urge that Municipal Committee is not the owner of the disputed property, more particularly when in the earlier litigation the Municipal Committee took a positive stand that it was the owner and its claim was not disputed and was not put in issue in the earlier litigation.

On the ultimate analysis, I hold that the order of the Collector, Ex. P24, is illegal and void and the plaintiff is granted declaration to the effect that respondent No. 1 will not be entitled to dispossess the plaintiff from the disputed property in pursuance of the order of the Collector, Ex. P24, passed under the Act and respondent No. 1 is restrained from dispossessing the plaintiff pursuant to that order. However, I leave the authorities to take such action against the plaintiffappellant as permissible under the law.

Resultantly, the appeal is allowed and the judgments and decrees of the Courts below are set aside. The parties will bear their own costs.