Mit Singh vs Rur Singh and others

B.S. Yadav, J.—This judgement will dispose of the above titled appeal as well as R.S.A. Nos. 159, 160 and 161 all of 1976 and titled as State of Punjab v. Rur Singh and others, as all these appeals have arisen out of the same suit.

The facts giving rise to these appeals are that the present respondents Nos. 1 to 4 who are sons of Pala Singh filed this suit against the State of Punjab and Mit Singh for a declaration that they were owners and in possession of the suit land measuring 198 Bighas and the orders of the Special Collector, Punjab at Chandigarh dated 17th January, 1963 declaring the land measuring 12 standard acres 10 1/4 units out of the above land as surplus was illegal, ultra vires and void. It may be mentioned here that originally the defendants arrayed were the State of Punjab and Pala Singh. Mit Singh filed an application under Order 1 Rule 10 of the CPC for being impleaded as a party on the ground that land measuring 54 Bighas 16 Biswas out of the suit land had been allotted to him and he had become its owner. By the time that application was decided Pala Singh had died. His name was struck off. The application filed by Mit Singh was allowed and he was impleaded as a party. According to the allegations in the amended plaint, the plaintiffs had no independent source of livelihood and, therefore, their father Pala Singh gave them 209 Bighas 18 Biswas of land as detailed in paragraph 2 of the plaint, for their maintenance. The plaintiffs started cultivating the aforesaid land. Consolidation proceedings took place in the village and in lieu of the said land they were allotted the suit land. Pala Singh executed a registered gift deed in respect of the suit land in their favour on 8th October, 1956. At the time of the enforcement of the Pepsu Tenancy and Agricultural Lands Act, 1955 (for short the Act), the plaintiffs were in possession of the aforesaid land. As they were enjoying its profits, therefore, they would be deemed to be landowners as defined in sub-section (2) of section 3 of the Punjab Land Revenue Act which definition has been adopted by the Act. After the gift, mutation was also sanctioned in their favour and their names came to be recorded in the revenue papers as owners in respect of the suit land. It was incumbent upon the revenue authorities to issue draft statement to them in case the suit land was to be declared as surplus. In fact, it could not have been declared surplus as it was less than their permissible area, as provided under the Act. The Special Collector, Punjab, considering this land as belonging to their father, Pala Singh declared 12 standard acres and 101/4 units of land out of it as surplus. The Special Collector did not issue any notice to the plaintiffs nor any draft statement, as required u/s 32-D of the Act and was issued to them and, therefore, the said order was illegal, ultra vires and void. The Special Collector also adopted a wrong standard for converting the aforesaid land into standard acres. The schedule followed by the Special Collector was as given in Pepsu Tenancy and Agricultural Lands Rules, 1958 which had been declared ultra vires of rule 5 of the above Rules as well as of section 2 clause (1) of the Act so far as it related to Sangrur District.

Regarding Mit Singh defendant, it was averred that though some land was said to have been allotted to him, but the possession thereof was still with the plaintiffs.

The suit was contested both by the Punjab State and Mit Singh defendant. The State of Punjab pleaded that the jurisdiction of the Civil Court to entertain the suit was barred by section 47 of the Act. The plaintiffs had filed a writ petition challenging the order of the Special Collector dated the 17th January, 1963, but it was dismissed by this Court, as well as by the Supreme Court and, therefore, the present suit was barred by the principles of res judicata. The gift deed dated 8th October, 1956 executed by Pala Singh whereby he transferred 198 Bighas of land to the plaintiffs did not effect the rights of the State under the Act and it was to be ignored in view of section 33-FF of the Act. Out of the land declared surplus by the Special Collector, 3 standard acres and 15 1/4 units of land had been allotted to the tenants. The other allegations of the plaintiffs were also denied.

Mit Singh defendant pleaded that 54 Bighas 16 Biswas of land, as detailed in the written statement, out of the land of Pala Singh, declared surplus, was allotted to him and actual possession of land measuring 43 Bighas 7 Biswas and symbolic possession of the remaining land, measuring 11 Bighas 9 Biswas, delivered to him. Pala Singh had filed an appeal against the order of the Special Collector dated 17th January, 1963, but it was dismissed. The other pleas taken by him were similar to those taken by the State of Punjab.

Upon the allegations of the parties, the trial Court framed the following issues :

Whether the suit is barred by res judicata ? OPD

Whether this Court has no jurisdiction ? OPD

Whether the order of the Special Collector is ultra vires and is not binding upon the plaintiffs on the grounds alleged in the plaint ? OPP

Whether the possession of 3 standard acres and 15 1/4 units was given to defendant No. 2 by the Punjab State after taking it from the plaintiff? OPD

Relief.

Under issue No. 1 the Court held that though the plaintiffs and Pala Singh had filed 2 writ petitions in this Court and one in the Supreme Court, but the dismissal of those petitions did not operate as res judicata as those were not decided on merits. Under issue No. 2 it was held that the Court had jurisdiction to entertain the suit. Under issue No. 3, in that Court the order of the Collector was challenged only on two grounds; firstly that the possession of the land declared surplus had not been taken from the plaintiffs and secondly, the schedule of the Pepsu Tenancy and Agricultural Land Rules, 1958, so far as it related to District Sangrur had been declared by this Court ultra vires of Rule 5 and section 2 (1) of the Act and the Special Collector had acted upon the unconstitutional schedule and thus the declaration of the land by him as surplus was bad. About the first point, it was held by the Court that the land would be deemed to have vested in the State when the possession thereof had been taken by or on behalf of the State Government u/s 32-E of the Act and it was not necessary that the State Government must first take possession of the land declared surplus and then hand it over to the allotees About the second point, it was remarked that though the scheduled appended to the Rules had been declared ultra vires by this Court in case Waryam Singh v. The Collector (Agrarian Reforms), Sangrur & others 1963 P.L.J. (Revenue) 135, and the Collector had taken into consideration the said schedule, but it did not cause any prejudice to the plaintiffs or to the heirs of Pala Singh. Under issue No. 4 it was held that physical possession of 43 Bighas 7 Biswas of land had been delivered to Mit Singh. As a result of the above findings, plaintiffs'' suit regarding 43 Bighas 7 Biswas was dismissed and qua the remaining land it was decreed. Feeling aggrieved against that decree, the plaintiffs, as well as the two defendants, filed separate appeals which were heard by the learned Additional District Judge, Sangrur. By one judgment, he disposed of all those appeals. He, too, held that the suit was not barred by the principles of res judicata or by the provisions of section 47 of the Act. It was further held that as no notice had been served upon the plaintiffs before the land was declared surplus, nor had the actual possession of the land been taken by the State from them before its delivery to Mit Singh defendant, therefore, the order of the Special Collector declaring the land as surplus was bad in the eyes of law and the delivery of possession of 43 Bighas 7 Biswas to Mit Singh was of no consequence and was ineffective against the rights of the plaintiff. As a result of the above findings, the appeal filed by the plaintiffs was accepted and their suit was decreed in its entirety. The other two appeals filed by the two defendants were dismissed Still feeling not satisfied, lit Singh defendant has filed the present appeal, while the State of Punjab has filed the other 3 appeals against the decrees passed by the learned lower Appaellate Court in the three appeals.

The learned counsel for the appellant argued that in 1965, the plaintiffs, along with Pala Singh, had filed Civil Writ Petition No. 2213 in this Court, copy of which is Ex. D1, in which practically similar pleas as have been taken in the present suit were taken while challenging the order of the Special Collector dated 17th January, 1963 but the same was dismissed. It was further argued that thereafter the plaintiff''s and Pala Singh had filed writ petition No 236 of 1966 (copy of which is Ex. D7) in the Supreme Court under Article 32 of the Constitution of India in which also practically the same pleas which have been taken in the present suit were taken, but the same too was dismised vide order copy Ex. D6, on 10th August, 1967 and the decision of those writ petitions operates as res judicata and bars this suit. None of the parties has filed copy of the order passed by this Court in CWP No. 2213 of 1965 and therefore, it cannot be said, on what grounds it was dismissed. The Supreme Court in CWP 236 of 1966 passed the following order

The petition above-mentioned being called on for hearing before this Court on the 26th July and 10th August 1967 upon hearing counsel for the petitioners and counsel for the Respondent No 5 THIS COURT DOTH ORDER : (1) THAT the petition above-mentioned be and is hereby dismissed and THAT the Rule granted by this Court on the 4th November, 1966 in the Writ Petition mentioned above be and the same is hereby discharged; (2) THAT there shall be no order as to costs of this petition; (3) THAT the order dated the 23rd January 1967 of this Court granting stay in Civil Misc. Petition No. 3252 of 1966 be and the same is hereby vacated AND THIS COURT DOTH FURTHER ORDER that this ORDER be punctually observed and carried into execution by all concerned.

From the above-quoted order of the Supreme Court, it is clear that their Lordships did not dismiss the writ petition by passing a speaking order on merits. Therefore, the said order will not operate as res judicata against the plaintiffs, as is clear from the observations made by a Full Bench of this Court in CWP 1522 of 1973, the judgment of which has been reported as Teja Singh v The Union Territory of Chandigarh & others (1982) 84 P.L.R. 160. (Revenue) 135. It was remarked :

Thus it is quite evident that the principels of res judicata are attracted only when a writ petition is dismissed after contest by passing a speaking order as in that event the decision would operate as res judicata in any other proceeding such as suit or a petition under Article 32 etc.

Their Lordships of the Supreme Court in The Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, observed a follows :

It is well-known that the doctrine of res judicata is codified in S. 11 of the CPC but it is not exhaustive. Section 11 generally comes into play in relation to Civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of S. 11 of the CPC and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding, between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then, such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided.

In the instant case the award of the Tribunal, no doubt, was challenged in the SLP filed in this Court, on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case What is, however, to be seen is whether from the order dismissing the SLP in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the SLP cannot be reopened. But the technical rule or res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our viewpoint, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding such as, of suit, Art. 32 or Art. 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principles of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one word order ''dismissed another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata

Thus, from the above it is clear that when a writ petition is dismissed in limine by a non-speaking order, merits of the case cannot be deemed to have been decided and such a decision will not operate as res judicata in a separate suit or other proceedings. Of course, such a dismissal will bar a subsequent writ petition on the same cause of action. It is, therefore, held that the dismissal of the writ petitions by this Court or by the Supreme Court will not operate as res judicata against the plaintiffs in the present suit.

The learned counsel for the appellant next argued that the present suit is barred u/s 47 of the Act. This argument also has no force. That section reads as follows :--

47(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.

However, the Civil Courts jurisdiction is not completely ousted in spite of such a provision. In Santa Singh v. The State of Punjab (1972) P.L.J. 240, this Court remarked :

It is well settled that the ouster of the Civil Court''s jurisdiction is not to be readily inferred and statutes which exclude such jurisdiction are to be construed very strictly. The crucial words in Section 47 of the Pepsu Tenaney & Agri. Lands Act are under or in pursuance of this Act. Consequently, if the Collector overstepping his jurisdiction, passes an order which could not be made under or in pursuance of this Act, the bar to jurisdiction in section 47 would not be operative. That is to say, if the plaintiff succeeds in showing that the order in question was made by the Collector in excess of the jurisdiction conferred by the Act or it was against any mandatory provision of the statute, the bar to jurisdiction enacted in section 47 would not be attracted. It is firmly established that the Civil Court has always jurisdiction to entertain and decide a suit in which the question is, whether the authority exercising special jurisdiction under the Act, has acted ultra vires.

I may also cite here Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, , wherein their Lordships of the Supreme Court remarked :

The law on the subject may be briefly stated thus :

Under section 9 of the CPC the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil Courts. The statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion if it creates a liability before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court''s jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provision.

As will be discussed below, the plaintiffs have to be regarded as persons interested in participating in the proceedings for declaration of surplus area. The Special Collector did not issue notice to the plaintiffs. Hence, he violated the principles of natural justice and abused the powers, vested in him under the Act. Therefore, it cannot be said that he made the order in question under or in pursuance of the Act. Thus, the Civil Court had jurisdiction to entertain the suit.

Admittedly in the present suit no notice before taking proceedings about the declaration of the surplus area was issued to the plaintiffs in spite of the fact that vide Jamabandi P10 for the year 1958-59 the plaintiffs had been recorded as owners in possession of the suit land. Though the transfer in their favour had been effected by Pala Singh after 21st August, 1956, but, in spite of it, they will have to be considered as interested parties to the proceedings taken against him (i.e. Pala Singh). In Harnek Singh & another v. The State of Punjab (1972) 74 P.L.R. 127 (F.B.), it was remarked :

Following the principles laid down in the above mentioned judgments of the Supreme Court and the earlier judgments of that Court in which the earliest dicta on the subject in board of Education v. Rice & others, (1911) AC 179, were approved, I would answer the question referred to us in the affirmative and hold that where a transfer is made by a landowner after August 21, 1956, the transferee is a person interested in participating in the proceedings for declaration of surplus area and he must be given an opportunity of being heard to avoid his interest being prejudicially affected before declaring the surplus area of his transferor under this Act.

The learned counsel for the appellants argued that the order of the Special Collector, copy Ex. P. 1, shows that Rur Singh, one of the plaintiffs, had appeared before him when the impugned order was passed. This order shows that Rur Singh had not appeared in his individual capacity, but had appeared on behalf of Pala Singh. Moreover, appearance of one of the transferees before the Special Collector will not relieve the latter of his duty) to issue notice to the other transferees, as it cannot be said that Rur Singh represented the interests of the other transferees who were entitled to notice before their land could be declared surplus. I may also quote here Hardev Singh & others v. State of Punjab, IL.R (1970) P&H. 411: 1971 P.L.J. 283 wherein this Court remarked :

Even otherwise, the requirement of service if notice on all persons interested under sub-rule (3) of rule 6 of the 1956 Rules appears to us to be based on principles of natural justice requiring an opportunity being afforded to any person who is likely to be prejudicially affected by an order which might be passed in the relevant proceedings. The want of such a notice cannot be dispensed with or ignored on the mere ground that particular transferees or tenants who may otherwise be deemed to be the person interested in the proceedings have really no good defence to the proposed order. It is no doubt correct that neither the Act nor the 1956 Rules require the Circle Revenue Officer or the Collector to hold an investigation into who could be the possible persons interested in the proceedings before them. It is, therefore, manifest that notice under rule 6(3) has to be issued in the proceedings before the Circle Revenue Officer only to such persons whose names may be mentioned in form ''D'' prepared by the Patwari or whose names may be shown in the relevant revenue records available to the Circle Revenue Officer as either vendees or donees or other transferees or tenants of the land which is proposed to be included in the surplus area of the original landowner. In the present case, it is admitted that the names of the petitioners had been entered in the revenue record as donees of the disputed land on account of the sanction of the mutation of the gift, and that relief on account of the said alienation had been claimed by the landowner before the Circle Revenue Officer. We, therefore, hold that the entire proceedings for determination of the surplus area of the original landowner in so far as it relates to the land forming the subject-matter of the gift deed in favour of the petitioners is concerned, are vitiated by the above- mentioned apparent error of law which has prejudicially effected the petitioners.

Thus, notice to all the transferees was necessary and as it was not given, the order of the Special Collector is vitiated. The State cannot take shelter under the plea that the transfer in favour of the plaintiffs was effected by the big land owner after the ''appointed day'' The transfer is valid in between the transferor and the transferee though it may not be binding upon the State However, the transferee is entitled to plead his case before the competent authority Of course it is upto the authority to reject the defence raised by the transferee, but natural justice requires that he must be heard before his plea is rejected. Hence the order of the Collector declaring some portion of the suit land as surplus area is vitiated. The finding of the learned Courts below is accordingly confirmed.

The learned counsel for the plaintiff-respondents also argued that the schedule appended to the Pepsu Tenancy and Agricultural Lands Rules, 1958 for conversion of ordinary acres to standard acres, was struck down by this Court in Waryam Singh''s case (supra) and the Special Collector while declaring the land of Pala Singh as surplus had adopted that schedule. Though, in that judgment it was remarked that the schedule, so far as it related to Sangrur District was ultra vires Rule 5, as well as the definition in section 2(1) and (2) of the Act, but those observations will have to be read in the context with the discussion made in the judgment. It was remarked in that ruling that the schedule relating to Sangrur District was bad, because it valued ''Chahi'' land irrespective of its sub-divisions, ''Chahi Khalis'' and ''Chahi Niayin'' at the same rate. It was also remarked that ''Chahi Niayin'' would be land irrigated through a well and was manured and such land would definitely yield better crops than those which were not manured. Therefore, it must be held that the schedule was declared ultra vires only so far as it related to ''Chohi Niayin'' lands. In the present case, there is nothing on the file to show that any land of Pala Singh was of that category. Therefore, on that ground, the order of the Special Collector cannot be held to be invalid. Moreover, that objection was open only to Pala Singh, who was alive when the present suit was filed, as he was the person affected by that act of the Collector.

For the foregoing reasons, I do not find any force in this appeal or the other appeals and dismiss all of them. In the circumstances of the case, the parties are left to bear their own costs in all the appeals.