Punjab State vs Bachan Singh and others

B.S. Yadav, J.

Plaintiff No.1 Bachan Singh, his sons Gurdev Singh alias Gurdeep Singh, Darshan Singh and Nishan Singh and wife Gurdial Kaur filed this suit against the State of Punjab for a decree for permanent injunction restraining the defendant from interfering with their possession over the suit land measuring 574 Kanals 6 Marlas. According to the allegations in the plaint, Bachan Singh (plaintiff No.1) was recorded owner of the land detailed in plaint paragraph No.2 and was also in its possession as Karta of the Joint Hindu Family. On 7th March, 1956 a partition was effected amongst the plaintiffs, according to which Bachan Singh became owner to the extent of halfshare in the above land whereas the remaining plaintiffs become owners of the other half. The factum of this partition was recorded in the revenue papers. That partition had been effected before the coming into force of the Pepsu Tenancy and Agricultural Lands Act, 1955 (for short the Act). Later on consolidation proceedings took place in the village in which suit land was allotted to the plaintiffs in lieu of the land held by them. In this land also Bachan Singh had half share, while the other half belonged to the other plaintiffs. The Collector (Agrarian), Barnala, commenced proceedings against Bachan Singh alone regarding the declaration of surplus area. The remaining plaintiffs were not made parties to those proceedings. Treating the whole land as belonging to Bachan Singh, the Collector (Agrarian) vide order dated 28th February, 1963 declared 25 standard acres and 51/2 standard units as surplus out of the whole land. Bachan Singh appealed but he was not successful. According to the plaintiffs, the said order of the Collector (Agrarian) was null and void as partition had been effected before the coming into force of the Act and, therefore, the share of the remaining plaintiffs could not be considered as belonging to Bachan Singh, plaintiff, and no notice of the surplus proceedings was given to the other plaintiffs.

The defendant contested the suit and pleaded that Civil Court had no jurisdiction to try the suit. The suit was barred by time. It was further pleaded that the order of the Collector (Agrarian) was valid. The other allegations of the plaintiffs were also controverted.

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

(1) Whether the suit is within limitation?

(2) Whether this Court has jurisdiction to try this case?

(3) Whether notice u/s 80 C.P.C. has been served upon the defendants, if not, its effect?

(4) Whether the suit in the present form is maintainable?

(5) Whether the plaintiffs are the owners of the land in suit, as alleged in the plaint?

(6) Whether the order dated 28.2.1963 of the Collector (Agrarian), Barnala, is illegal, null, void and without jurisdiction and is ineffective against the rights of the plaintiffs?

(7) Whether the plaintiffs are entitled to injunction prayed for?

(8) Relief.

The Court under issue No.1 held that as the plaintiffs were in possession of the suit land, therefore, they were not bound to file the suit when the Collector (Agrarian) passed the impugned order that they could file the suit when their rights were actually jeopardised and it happened about one week prior to the filing of the suit when the plaintiffs started apprehending their dispossession from the suit land and thus the suit which was filed on 20th June, 1972 was within time. Under issue No.2 it was Collector (Agrarian), who had not issued any notice to the plaintiffs except Bachan Singh, had over stepped his jurisdiction while declaring the surplus area. Under issue No.3 it was held that the notice was issued to the defendant under section 80, Civil Procedure Code. Issue No. 4 was also decided in favour of the plaintiffs on the ground that there was averment in the plaint of imminent threat to their possession. Under issue No. 5 it was held that the plaintiffs were owners of their respective shares as averred in the plaint. Under issue No. 6 it was held that the impugned order of the Collector was operative only against Bachan Singh plaintiff and not against the other plaintiffs to whom no notice had been issued before the area was declared surplus. Under issue No.7 it was held that the impugned order was final against Bachan Singh while the other plaintiffs were entitled to the injunction prayed for. As a result of the above findings the suit as far as it related to Bachan Singh was dismissed while a decree for permanent injunction was granted in favour of the remaining plaintiffs.

Feeling aggrieved, the State of Punjab filed an appeal which was heard by learned Additional District Judge, Barnala. Before him the findings given by the trial Court under issue Nos. 3, 4 and 7 were not challenged. On the remaining issues he confirmed the findings of the trial Court and dismissed the appeal. The defendant has now come to this Court in second appeal. Before me the learned counsel for the appellant challenged the findings of the learned Courts below under issues No. 2, 5 and 6. In fact only issues No. 2 and 6 are material for disposal of this appeal.

I will first take up issue No.2. The learned counsel for the appellants argued that the present suit is barred under section 47 of the Act. This argument had no force. That section read 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 Court''s jurisdiction to entertain a suit is not completely ousted in spite of such a provision. In Santa Singh v. The State of Punjab, 1972 PLJ 240, this Court remarked :

"It is well settled that the ouster of the Civil Court''s jurisdiction is not to be readily inferred and the statutes which exclude such jurisdiction are to be construed very strictly. The crucial words in section 47 of the Pepsu Tenancy and Agricultural 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 this 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 this Act, has acted ultra vies."

I may also cite here Firm Seth Radha Kishan and others v. The Administrator, Municipal Committee, Ludhiana, 1963 P.L.R. 912, wherein their Lordships of the Supreme Court remarked :

"The law on the subject may be briefly stated thus : Under section 9 of the Code of Civil Procedure, 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 Court; even if there was no such specific exclusion if it creates a liability not existing 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 the 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 provisions." As will be discussed below, plaintiffs No.2 to 5 were persons interested in participating in the proceedings for declaration of the surplus area. The Special Collector did not issue notice to the said 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.

Now I take up issue No. 6. The case of the plaintiffs is that a partition was effected amongst themselves on 17th March, 1956 and in that partition, 1/2 share in the land in lieu of which suit land was allotted in consolidation proceedings fell to the share of Bachan Singh and the remaining share to the remaining plaintiffs have not produced any documentary evidence about the alleged partition. The oral evidence led by the plaintiffs also does not fix the date of partition. However, the fact remains that in the Jamabandi Exhibit P.5 for the year 195455, in the remarks column there is a mention of mutation No. 4752 decided on 17th May, 1959, according to which, plaintiffs No.2 to 5 were recorded as owners of 1/2 share out of the land recorded in the ownership of Bachan Singh plaintiff. P.W.3 Ajmer Singh, Peshi Kanungo, from the file relating to the declaration of surplus area of Bachan Singh was declared on the basis of jamabandi for the year 195455 and in that Jamabandi, there is a note with regard to the change of ownership vide mutation No. 4752. Thus, the Collector, while taking the case of surplus area of Bachan Singh, must have noticed that 1/2 share had been transferred to plaintiffs No. 2 to 5. Surprisingly enough, no notice was issued to them, as admitted by Ajmer Singh. In Harnek Singh and another v. The State of Punjab and others, 1971 PLJ 727 (FB) 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 and others, (1911) Appeal Cases 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 areas of his transferor under the Act."

I may also cite Hardev Singh and others v. The State of Punjab and others, 1971 PLJ 283, wherein it was remarked :

"Even otherwise, the requirement of service of notice on all persons interested under subrule (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 persons 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 affected the petitioners."

Hence, as noticed earlier, notice to the plaintiffs No. 2 to 5 were not issued by the Collector. The State cannot take shelter under the plea that the transfer in favour of the said plaintiffs was effected by the big landowner after the ''appointed day''. The transfer is valid as 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 the suit land as surplus is vitiated. The finding of the learned Courts below is accordingly confirmed.

For the foregoing reasons, I do not find any force in the present appeal and dismiss the same. In the circumstances of the case, the parties are left to bear their own costs.