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Judgment
Relying upon the judgments reported in AIR 1986
SC 1912, AIR 1996 SC 3445, 2011 AIR SCW 2974, (2015) 4 SCC
60, 2015 (4) DNJ 1544, AIR 1975 Raj. 69, 1997(1) WLC 113 and
AIR 1998 P&H 254, learned counsel for the appellant has
contended that both the courts below have erred in passing the
impugned judgment/s. There is a substantial question of law
involved in this appeal, since the appellant was given possession
of the disputed land and after elapsement of clog period, he was
given khatedari rights. Referring several extracts of the evidence,
learned counsel has contended that Hon''ble the Supreme Court
has already held the provisions of Sections 6A and 6(4) of the
Rajasthan Colonisation (Allotment and Sale of Govt. Land to Pong
Dam Oustees and their Transferees in the Indira Gandhi Canal
Colony Area) Rules, 1972 (hereinafter referred to as ''the Rules of
1972'') unconstitutional, so application of the law laid down in the
case of "Gurdeep Singh Vs. Special Judge, Pong Dam
Oustees Matters, Sriganganagar [RLW 1998(3) Raj. 1526]"
cannot be deemed to be having any effect on the merit of the
case. It has also been contended that there is an admission
regarding execution of attorney and agreement to sale by the son
of the executant, which is admissible, so factum of execution of
the deeds may not be assailed. Learned counsel has also
contended that important question of law have been formulated in
the memorandum of appeal, which are dealt in memorandum from
(A) to (G), which reads as under:-
"(A) Whether rule 6(4) of the Rajasthan Colonization (Allotment of Government Land to Pong Dam Oustees in IGNP) Rules, 1972 bars a vender to enter into an agreement to sell the land before the period of 10/20 years from the date of allotment?
(B) Whether entering into an agreement to sell the land by the vender in favour of vendee, a right to sue under section 53(a) for part performance of agreement under TP Act and under section 16 of the Specific Relief Act would arise and bar for certain period does not render the agreement to sell land unenforceable if the period of bar expired?
(C) Whether the bar to the transfer of land into Pong Dam Oustees Rules would be bar on the title of land, when complete sale has not been made by executing the sale deed but only an agreement to sell has been executed and only pre-condition in respect of transfer was expiry of period from the date of allotment?
(D) Whether the admission made by Vishambhar Das son of the allottee Mehru in the judicial proceedings before the Deputy Collector, Anupgarh and admitting execution of agreement, receiving sale consideration and handing over possession to the appellant is binding on defendants and this admission is the best evidence and agreement for sale of land stands proved?
(E) Whether possession of the land in dispute since date of agreement has been proved, when the defendants have not specifically denied and legal proceedings have not been initiated for dispossession of the appellant?
(F) Whether the judgments and decrees of the courts below stand vitiated for non-consideration below stand vitiated for non-consideration of material evidence and findings on issue No.1 deserve to be reversed?"
and has contended as to admit the second appeal.
Learned counsel for the respondent, while relying
upon the judgment delivered in the Gurdeep Singh''s case (supra),
has contended that the finding of the trial court clearly shows that
revenue authorities had taken action against the allottee for
ousting him since he had violated the allotment norms and
contravened the provisions of Rule 6(4), which was subsequently
restored and the land was restored in the name of Mehru. He has
further contended that this Court, while deciding Gurdeep Singh''s
case (supra) that such an agreement is void ab initio and the
position may not be of more than a trespasser, who could be
ousted. It has been contended that the alleged covenant regarding
agreement to sell has not been proved in the trial court, nor the
execution of power of attorney is proved. So, there is no important
question of law involved in the instant appeal, hence request for
admission of the second appeal is not tenable.
Perused the record and gone through the finding
of courts below.
It is an admitted position that the disputed
property relates to an allotment made under the provisions of
Rules of 1972 to the Pong Dam Oustees. Rule 6(4) of the Rules of
1972 lays down a stipulated clog on transfer, this court, while
deciding Gurdeep Singh''s case (supra), has held in para no.9 as
under:-
"The petitioner, who is transferee, from the oustee allottee did not get any rights whatsoever by such transfer because the transfer was obviously in violation of the terms of allotment and, as such, void. The possession of the petitioner on the land is nothing more than that of a trespasser."
A recital is also there in the judgment of the trial
court at Page No.6 that, "VERNACULAR MATTER OMITTED" both the Courts below have dealt the issues elaborately in arriving
at a concurrent finding.
In the aforesaid background, there appears no
substantial question of law involved, which needs adjudication
ahead.
The appeal is, therefore, dismissed.