Sadhu Singh and Others vs Punjab State

J.V. Gupta, J.—This it Plaintiff''s second appeal whose suit for declaration and permanent injunction was dismissed by the trial Court, but was partly decreed in appeal.

Chuhar Singh, Defendant No. 5, (now deceased), was the owner of land measuring 352 bighas 16 biswas situated in village Moon Tehsil Barnala District Sangrur, and the mortgagee in respect of the land measuring 3 bighas 13 biswas which was also situated in the same village. The Special Collector, Punjab vide order dated September 19, 1952, Exhibit P. 13, declared 8 standard acres 2 units of the land, i.e., the land measuring 112 kanals 13 marlas out of the land, in dispute as surplus. He preferred an appeal to the Commissioner, Patiala Division, Patiala, against the order of the Special Collector, which was dismissed on Novenber 26, 1962. Further appeal prefered by him before the Financial Commissioner, Development, Punjab, was also dismissed vide order dated May 7, 1963. Thereafter vide order dated December 27, 19 5, Exhibits P. 16 and P. 17, the Collector, Agrarian, Barnala, allotted the land measuring 71 kanals 15 marlas out of the land, in dispute, to Jit Singh, Defendant No. 3, (vide order, Exhibit P. 16), and the remaining land measuring 40 kanals 18 marlas was allotted to Haribant Singh, Defendant No. 4, (vide order, Exhibit P. 17'', under the utilisation of the surplus area scheme. The plain-tiff''s filed the present suit Inter alia for the declaration that the order passed by the Collector dated September 19, 1962 and the subsequent orders passed by the Commissioner and the Financial Commissioner and the order dated 27.12.75 were illegal and invalid and that the land in dispute, could not be allotted to Defendants Nos. 3 and 4. As such, the Defendants were liable to be restrained from taking possession of the land, in dispute. It was alleged that Chuhar Singh, the original landowner, transferred land measuring 83 bighas to them vide gift-deed dated June 13, 1957, Exhibit P. 1 on the basis of which mutation was sanctioned in their favour on May 18, 1958, vide. Exhibit P. 42. The orders of the Special Collector, the Commissioner and the Financial Commissioner were void and invalid for the reasons that no notice was given to them before declaring the land, in dispute, as surplus. The suit was contested by the Defendants inter alia on the grounds that the jurisdiction of the civil Court to entertain the suit was barred u/s 47 of the PEPSU Tenancy Agricultural Lands Act, and that the suit was also barred by time. It was also pleaded that Defendants Nos. 3 and 4 had already taken possession of the land, in dispute, and as such the suit was not maintainable in the present form The trial Court found that there was no illegality is the impugned orders passed by the Special Collector and the Commissioner declaring the land of the Plaintiffs as surplus. It was also held that the Plaintiff''s were not the owners of the suit land as alleged by them. Admittedly, the land was owned by Chuhar Singh, Defendant, who tried to transfer the same to his sons, which ultimately vested in the State Government As per the latest revenue records, the State Government was the owner of the land, in dispute. The jurisdiction of the civil Court was held to be barred in view of the judgment of this Court in Raj Mal v. Garib Dass 1977 P.L.J. 383. It was further found that the possession must have been handed over to Defendants Nos. 3 and 4 and, therefore, the suit for injunction as such was not maintainable. The suit was also held to be barred by time under Article 58 of the Limitation Act, which provides a period of three years for bringing a suit to obtain any declaration from the time when the right to sue first accrues. In view of these findings, the Plaintiffs'' suit was dismissed. In appeal, the mainstay of the Plaintiffs'' case was that they were the transferees of the land, in dispute from their father Chuhar Singh, Defendant and since they were not served any notice at the time the land was declared surplus in his hands, the order dated September 19, 1962, was illegal. The lower appellate Court came to the conclusion that notice was necessary to be served upon the plaintiffs before the land was declared surplus because its transfer in their favour was made after August 21 1956. Since no such notice was given to them, the order declaring the land surplus in the hands of Chuhar Singh, Defendant, to the extent it included the land which he had already gifted to the Plaintiffs was held to be void and illegal. That land was comprised in killas Nos. 39/6, 40/10, 11/1 and 11/2. The total area covered by them came to approximately 3-1/2 killas. It was also found by the lower appellate Court that since the order of the Special Collector was void to that extent, the Civil Court had the jurisdiction to try the suit and since the order was void, the suit could not be held to be barred by time As regards the finding of the trial Court as to the possession of the land delivered to the defendants vide, Exhibits D. 3 and D. 4 it was found that the actual possession of the land, in dispute, was not given and as such the Plaintiffs who were already in possession of the land and who were proved to be the owners thereof shall be deemed to have continued in its possession. As such the suit for mere declaration was held to be maintainable. In view of these findings, the appeal was partly accepted and the decree for declaration to the effect that the Plaintiffs, Pal Singh and Hardial Singh were the owners in possession of the land comprised in rectangle No. 39, killa No. 6 and rectangle No. 40, killas Nos. 10, 11/1 and 11/2, and that the impugned orders of the Special Collector, Commissioner, Financial Commissioner and the Collector, Agrarian, for delivery of possession of the land to Defendants Nos. 3 and 4 were void and illegal to that extent was passed Consequently, a decree for the grant of the permanent injunction restraining the Defendants from taking possession of the above-said land was also passed in favour of the Plaintiffs. The judgment and decree of the trial Court id respect of the remaining land were affirmed. Dissatisfied with the same, the Plaintiffs have come up in this appeal to this Court whereas the Defendants have filed the cross objections.

During the pendency of the appeal, Chuhar Singh, Defendant, the father of the Plaintiffs, died on January 8, 1984. Consequently, the Plaintiffs moved Civil Miscellaneous Application No. 662-C of 1984, for permission to put in additional grounds of appeal in this appeal. Notice of the application was given to the counsel opposite and it was ordered to be heard along with the main appeal.

The Learned Counsel for the Appellants contended that once it was found that the order of the Special Collector, dated September 19,1962, declaring the area surplus in the bands of Chuhar Singh, Defendant, was illegal and void because no notice was given to the Plaintiffs, the said order a whole should have been declared as illegal and void. The lower appellate Court, thus erred in decreeing the Plaintiffs'' suit only partially. It was also contended that since during the pendency of this appeal, Chuhar Singh, the father of the Plaintiffs has died and it was found that the possession of the land declared surplus remained with the Plaintiffs, they were entitled to the benefit of the provisions of Section 8 of the Punjab Land Reforms Act, 1973. In support of the contention, the Learned Counsel relied upon the Full Bench judgment of this Court in Ranjit Ram v. the Financial Commissioner, Revenue, Punjab 1981 P.L.J 259, and the Division Bench judgment of this Court in Sheo Chand v. Financial Commissioner, Haryana 1982 P.L.J. 155. On the other hand, the Learned Counsel for the Defendants-respondents contended that it had been wrongly held by the lower appellate Court that the order of the Special Collector dated September 19, 1962, was void simply because no notice was given to the Plaintiffs. Such an order, according to the Learned Counsel, was voidable and not void and, therefore, once it was so found, the jurisdiction of the civil Court to entertain the suit was barred u/s 47 of the PEPSU Tenancy and Agricultural Lands Act. In support of the contention, the Learned Counsel relied upon the Division Bench judgment of this Court in Harbans Singh and Another Vs. Ajit Singh and Others, and the Full Bench judgment of this Court in Dhaunkal v. Man Kaur 1970 P.L.J. 402 (F.B.). As regards the possession of the land, in dispute, by the Defendants-respondents, the Learned Counsel contended that u/s 32-E of the PEPSU Tenancy and Agricultural Lands Act, the area declared surplus will be deemed to have been acquired by the State Government for a public purpose and all rights, title and interest of all persons in such area shall be extinguished and such rights, title and interest shall vest in the State Government, free from all encumberances created by any person, on the date on which the possession thereof was taken by or on behalf of the State Government. Thus, the Defendants were allotted the land vide orders dated December 27, 1975, Exhibits P 16 and P. 17 and, In pursuance thereof, the possession was delivered to them on December 30, 1975, as is evident from Exhibits D 3 and D 4. Once the possession was delivered the land vested in the State Government and, therefore, the suit filed by the Plaintiffs in the civil Court was not maintainable, It was also contended that even the symbolical possession delivered to them was sufficient for the purposes of Section 32-E of the PEPSU Tenancy and Agricultural Lands Act. In support of this contention, the Learned Counsel relied upon Sheo Chand''s case (supra).

I have heard the Learned Counsel for the parties and have also gone through the relevant record and the case law cited at the bar.

Vide orders, Exhibits P. 16 and P 17, dated, December 27, 1975, the (and was allotted to Defendants Nos. 3 and 4 and in pursuance thereof vide, Exhibits D. 3 and D. 4, the Defendants were given its possession. It is evident that there was some communication from the Collector to the Tehsildar directing that the possession of the surplus area be delivered to the allottees. It was stated therein that the land had been mutated in favour of the State Government u/s 8 of the Punjab Law Reforms Act. 1973, and, therefore, the possession be delivered to the allottees, Moreover, Exhibits D. 3 and D. 4, have further been corroborated by the copies of the khasra girdawaris, Exhibits D. 1 and D. 2, according to which Jit Singh and Haribant Singh, are shown in the cultivating possession of the land for sauni 1975 and Hari 1916. The trial Court, relying on these entries came to the conclusion that the possession must have been handed over to the Defendants. It appears, subsequently, the Plaintiffs dispossessed them, but that will not change the position of the allottees-defendants because it was taken to be the land of Chuhar Singh which was declared surplus of which the possession was given to them. Thus, it was Chuhar Singh who could object to it as the Plaintiffs had no notice of the surplus proceedings. According to the lower appellate Court, Exhibits D. 3 and D. 4 do not show that the actual possession of the land was delivered to the Defendants and as such, the Plaintiffs who wore already in possession of the land of which they were proved to be the owners shall be deemed to have continued in its possession. In any case, the lower appellate Court only decreed the Plaintiffs suit qua those khasra Nos which had been transferred to them by way of gift, but were included in the surplus area of Chuhar Singh because the Plaintiffs were only found to be the owners of the land which was included in the surplus area though it had been already gifted to them. The lower appellate Court found that the order of the Collector was void and, therefore, the civil Court had the jurisdiction to entertain the suit and that the suit was also, therefore, within time. The Full Bench judgment of this Court in Dhaunkal''s case (supra) and the Division Bench judgment of this Court in Harbans Singh''s can (supra), have held that such an order where notice is not given to the necessary parties is voidable and not void ab initio, but again the question that arises for decision is: whether the revenue authorities have over-stepped their jurisdiction bestowed upon them under the Act, and if it is so, has the civil Court the jurisdiction to entertain a suit ? Support in this behalf has been sought by the Learned Counsel for the Plaintiffs from Santa Singh v. State of Punjab 1972 P.L.J. 240 to contend that the Civil Court had the jurisdiction to entertain the suit once the order was found to be voidable on the ground that no notice was given to the Plaintiffs as their land was also included in the area declared surplus in the hands of their father Chuhar Singh. The counsel for the Respondents, however, could not successfully argue that if the order was illegal and voidable then the civil Court had no jurisdiction to declare the said order as illegal and void. Therefore, it is held that the order of the Collector to that extent was illegal.

Having cleared the ground that such a suit is maintainable, the next question that arises is: whether the instant suit wag filed within limitation ? The order dated September 19, 1962, declaring surplus area, was admittedly passed without notice to the Plaintiffs and, therefore, no cause of action arose to them then. Cause of action arose to them when the land was allotted to the respective respondents on December 27, 1975, and from that date, the suit has been filed well within three years and, is, therefore, within limitation.

The net result is that both the appeal as well as the cross-objections fail and are dismissed with no order as to costs.

As regards Civil Miscellaneous Application No. 662-C of 1984, suffice it to say that as to what is the effect of death of Chuhar Singh, Defendant, during the pendency of the appeal in this Court, the Plaintiffs may take necessary proceedings before the competent authorities under the Punjab Land Reforms Act, 1975, if so advised. No such plea is maintainable in this Court on that account.