Thakar Dwara Gaddi Bawa Lal Dial Jee vs Sewa Singh (Deceased)

Harphul Singh Brar, J.—This is a Regular Second Appeal against the judgments and decrees dated February 23,1978 and June 1,1981 of the Subordinate Judge First Class, Batala and 2nd Additional District Judge, Gurdaspur, respectively. The suit filed by the plaintiff-appellant was dismissed and the appeal against the judgment and decree of the Subordinate Judge First Class, Batala, also met the same fate. Hence, this Regular Second Appeal.

Briefly stated, the facts are that the plaintiff, Thakar Dawara Gaddi Bawa Lal Dial Jee Dhianpur, Tehsil Batala-A religious institution filed the suit in question through Mahant Dwarka Dass as the Mohtmim and Founder President of Bawa Lal Dial Jee Dhianpur, Tehsil Batala Trust for the management of Thakar Dwara. The plaintiff (hereinafter called the Thakar Dwara in this appeal) brought a suit for declaration challenging the legality and validity of the order, dated July 23, 1971 passed by the Assistant Collector First Grade, Batala in an application u/s 18 (Form Q) under Punjab Security of Land Tenures Act in case Mula Singh v. Thakar Dwara Gaddi Bawa Lal Dial Jee, for the purchase of land mentioned in the Head Note of the plaint (Mula Singh is the defendant in the present suit). The subsequent orders dated October 16, 1972 of the Collector, Gurdaspur, and dated May 21,1973 of the Commissioner, Jullundur Division, respectively, were also challenged as ultra vires, illegal, null and void, inoperative and being without jurisdiction.

It was pleaded that the order, dated July 23,1971 whereby the Assistant Collector First Grade, Batala, allowed Mula Singh (now deceased) to purchase the suit land was illegal and void as the same was passed by the Assistant Collector First Grade against the statutory rules and principles and the same was passed in pursuance of a compromise and without the Assistant Collector himself judicially satisfying the existence of conditions in favour of Mula Singh for purchase of land being its tenant. It was then pleaded that it was incumbent for the Assistant Collector to have come to a definite finding before passing the impugned order to the effect that Mula Singh fulfilled all the conditions as mentioned in section 18 of the Punjab Security of Land Tenures Act, 1953 (for short, the Act). The order was further sought to be set aside as being without jurisdiction and against the statutory rules and principles. It was further pleaded that the impugned order was obtained by Mula Singh in connivance with Mukhtar of the plaintiff who had not been authorised to enter into any compromise and the Mukhtar did not seek any instructions from the Mohtmim, nor did he inform the Mohtmim regarding the decision before the expiry of the period of limitation. It was then pleaded that the disputed property belonged to a religious institution which could never be sold or disposed of as has been done in the present case.

Brief facts preceding to the filing of the present suit also need mention. Mula Singh defendant in the suit filed an application u/s 18 of the Act in From ''Q'' for the purchase of land in dispute against the plaintiff-religious institution on or before September 15, 1969 before the Assistant Collector First Grade, Batala. That application was initially contested by the plaintiff and some evidence was adduced by the applicant in that case. However, during this period, Surinder Pal Sharma, General Attorney of Mahant Dwarka Dass, Mohtmim and founder President of the religious institution made a statement before the Assistant Collector on the basis of which the application of Mula Singh was decided by the Assistant Collector Batala, on July 23, 1971 taking into consideration the statements of the parties recorded by way of compliance and he assessed the compensation payable to the plaintiff in respect of the purchase of the said land at Rs. 60,000/- and in that application it was specifically mentioned that if Mula Singh applicant-defendant failed to make the payments as provided in the order, his application shall stand dismissed. However, if he made the payments as stipulated in the order, he would become the owner of the land in question. It was also mentioned in the application that some land of the plaintiff-institution had been declared surplus and the land in question was not the reserved area of the plaintiff institution. It was also mentioned in the application that Mula Singh defendant was a tenant over the disputed land for the last number of years and the disputed land was his permissible area as a tenant and he was en- titled to purchase the same as provided under the Act. After time for preferring the appeal against that order of the Assistant Collector had expired, the plaintiff-institution made an application before the Assistant Collector First Grade, Batala, for review of the impugned order, dated July 23, 1971. The Assistant Collector recommended the review of the order to Collector, Gurdaspur. However, the Collector, Gurdaspur did not agree with the report of the Assistant Collector and refused to review the impugned order. Thereafter, the plaintiff-institution went in appeal/revision against that order before the Commissioner and Financial Commissioner and those were also dismissed by them. When the plaintiff failed to get any relief in the revenue forums, he finally knocked at the door of the civil Court by filing the present suit for declaration and possession challenging therein the legality and validity of the impugned order.

The suit was contested by the defendant by stating that the civil Court had got no jurisdiction to try the suit as the jurisdiction of the civil court was specifically barred u/s 25 of the Act and that the defendant had been cultivating the suit land as a tenant on fixed cash rent under the plaintiff for more than forty years prior the filing of application before the Assistant Collector First Grade, Batala for purchase of the said land u/s 18 of the Act. It was then pleaded by the defendant that he had deposited his first instalment on July 30, 1971 as fixed by Assistant Collector First Grade, Batala and he had become owner of the suit land on July 30, 1971 as per section 18 of the Act. It was then pleaded that the suit was not maintainable in the present form as the plaintiff had already availed of the remedies available to him under the Act.

It was then pleaded by the defendant that Mahant Dwarka Dass Chela Mahant Sudarshan Dass Chela Harnam Dass of Thakar Dawara Dhianpur were shown as owners of the suit land in Missal Haqiat and said Mahant Dwarka Dass who also shown as Dakhlikar in the suit land in the Khataoni Ishtmal prepared in the consolidation of holdings which took place in Village Khera Sultan and the name of said Mahant Dwarka Dass was deleted and the name of Thakar Dawara Gaddi Bawa Lai Dial Jee Bah-ihtmam Mahant Dwarka Dass was entered and inserted in the jamabandi of the suit land for the year 1965-66. On the basis of collusive decree dated March 15, 1971 the defendant denied the possession of the suit land as a tenant after the deposit of the first instalment. He had deposited Rs. 42,000/- in seven instalment as per terms of the order, dated July 23,1971.

It was then pleaded that the impugned order passed by the Assistant Collector was legal, valid, within jurisdiction and in accordance with the provisions of section 18 of the Act. It was further pleaded that the suit land was proved to be surplus area before the Assistant Collector First Grade, Batala as shown in the evidence of Sowran Singh Agrarian Clerk, Gurdaspur and on the basis of the order of Collector, Gurdaspur passed on March 6, 1961, the suit land was also not proved to be the reserved area of the plaintiff and the plaintiff was declared as big land- owner. It was further proved on the file on the basis of evidence of Chajju Ram Patwari that the defendant was a tenant in continuous possession of the suit land for more than six years prior to the filing of the application u/s 18 of the Act. It was further averred that the average price of the land was also calculated and was proved by Chajju Ram Patwari and Surinder Pal Sharma was also authorised to enter into a compromise as mentioned in General Power of Attorney, dated April 24, 1971. It was then pleaded that the compromise recorded was not challenged at all in Review Application, nor any malice was attributed to Mukhtar-e-am. It was pleaded that the plaintiff was debarred by his own act and conduct to file the present suit. It was further pleaded that the suit land was not exempted u/s 18 of the Act being a religious or charitable institution. In the end, it was prayed that the suit may be dismissed with costs and he be awarded special costs u/s 35A of the Code of Civil Procedure, as the suit was frivolous and vexatious to the knowledge of the plaintiff.

On the pleadings of the parties, the following issues were framed:-

(1) Whether the Court has got no jurisdiction to try the suit? OPD

(2) Whether the suit is within time? OPP

(3) Whether the suit is properly valued for the purpose of court-fee and jurisdiction? OPP

(4) Whether the order dated 23rd July, 1971 and subsequent orders as alleged in para 5 of the plaint are illegal, void, ultra vires, without jurisdiction, nullity and not binding on the plaintiff? OPP

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

(6) Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD

(7) Whether the defendant has effected any improvements in the suit land and planted trees therein. If so to what amount and to what effect? OPD

(8) Whether the defendant was a tenant over the suit land prior to the passing of order dated 23rd July, 1971? If so its effect? OPD

(9) Whether the defendant is entitled to special costs u/s 35A Civil Procedure Code? OPD

(10) Whether the plaint is not properly verified. If so its effect? OPD

(11) Relief.

Issues Nos. 1, 2, 3, 5, 6, 9 and 10 were decided in favour of the plaintiff. It was held therein that the suit was within limitation, properly valued and maintainable and the plaintiff was not estopped from filing the present suit. Issues No. 4, 7 and 8 were decided against the plaintiff and in favour of the defendant, and it was held under Issue No. 4 that the impugned order of the Assistant Collector First Grade dated July 23, 1971 was legal, valid and binding and could not be said to be without jurisdiction. Under Issue No. 8, it was held by the trial Court that the defendant had proved himself to be the tenant even prior to the coming into force of the Act. In view of the findings on issues No. 4 and 8, he dismissed the suit.

The learned lower appellant Court dismissed the appeal filed by the plain- tiff. The findings of the learned trial Court on Issues No. 4 and 8 were affirmed. However, the learned lower appellate Court set aside the findings of the trial Court on Issue No. l and held that the civil Court had got no jurisdiction to try the suit.

The learned counsel for the appellant has challenged the findings of the Courts below on Issues No. 4 and 8 and of the learned lower appellate Court on Issue No. 1. He contends that the Assistant Collector while passing the order, mere- ly put his seal on the compromise of the parties without judicially satisfying himself as to whether the application u/s 18 of the Act deserves to succeed or not. The learned Assistant Collector, according to him, even failed to record in the im- pugned order that he went through the application, oral and documentary evidence on the record and had satisfied himself with all the conditions for exercise of his powers u/s 18 of the Act. Any order passed in pursuance of such a com- promise is a nullity, accordance to the counsel. The counsel further asserts that there is nothing on the record to show that there was any evidence before the Assis- tant Collector for coming to the conclusion that defendant Mula Singh was in possession of the suit land as a tenant for a continuous period of six years prior to the filing of the application u/s 18 of the Act. There was no evidence, ac- cording to the counsel, on the record to show that Mula Singh was inducted as a tenant over the disputed land prior to coming into force of the Act. According to the learned counsel, there was no evidence before the Assistant Collector showing that defendant Mula Singh was tenant over the disputed land for a continuous period of six years prior to the coming into force the Act. The order, according to the counsel is thus against the statute and in violation of the mandatory provisions of the Act. He has cited State of Punjab (now Haryana) v. Amar Singh 1974 RLR 197 for the proposition that the Assistant Collector could not act on a compromise which was collusive. This authority is not applicable to the facts of this case at all. In Amar Singh''s case (supra), a collusive decree was obtained by one Amar Singh and another claiming themselves to be the tenants of the suit land in connivance with the landowners in order to save their land from being utilised for the re-settlement of ejected tenants. In the case in hand, Mula Singh defendant moved an application u/s 18 of the Act for purchase of the suit land on or before September 15, 1969 before the Assistant Collector First Grade, Batala, and interests of both the parties were adverse to each other. The application filed by Mula Singh was contested by the plaintiffs at the outset. It was only then when Mula Singh defendant adduced oral and documentary evidence in support of his claim and later oh perhaps sensing that the tenant''s case was strong, the matter was compromised. The plaintiff even challenged the order, dated July 23, 1971 of the Assistant Collector in all the legal forums including the Collector, the Commissioner and the Financial Commissioner and he failed in all those forums.

The learned counsel for the appellant further contended that the Assistant Collector merely acted on the compromise between the parties and did not himself apply his mind for coming to the conclusion that there existed a right in favour of Mula Singh to purchase land, u/s 18 of the Act. According to the learned counsel, the Assistant Collector should have specifically mentioned in his order that from the statements of the parties and some other evidence on the record, he was satisfied that the application of Mula Singh defendant should succeed. There is no force in this contention of the learned counsel for the reasons stated by me in the later part of this judgment.

He further contended that Surinder Pal Sharma General Attorney was not authorised to sell the suit land. This compromise in a way amounted to sale of the land and the impugned order is illegal, as the General Attorney was specifically debarred to sell the suit land. There is no merit in any of these contentions of the learned counsel, because in the General Power of Attorney, Exhibit P-3, in Clause 6, it is specifically mentioned that the Attorney was authorised to compromise, compound or withdraw every case, claim and dispute or to refer any matter or case to Arbitration. It is clearly established from the General Power of Attorney that Surinder Pal Sharma was authorised by Mahant Dwarka Dass to compromise, compound or withdraw any case. Moreover, Mahant Dwarka Dass who had appointed Surinder Pal Sharma as his Attorney, did not appear in Court to contest that he had not authorised Surinder Pal Sharma to enter into compromise. There is no evidence on the record to show that Suridner Pal Sharma acted beyond the powers conferred on him or that he had acted beyond the wishes of Mahant Dwarka Dass of the Thakar Dawara. There is no evidence on the record to show that Surinder Pal Sharma did not inform Mahant Dwarka Dass of having effected the compromise with Mula Singh defendant in Court. Even Mahant Dwarka Dass had not stepped into the witness-box to challenge the entering into compromise and to compound the application which was pending against the Thakar Dawara. Thus, it cannot be held that the said compromise was entered into by Surinder Pal Sharma in connivance with Mula Singh and beyond the wishes of Mahant Dwarka Dass, Mohtmim and founder President of Bawa Lal Dial Jee Dhianpur. There is not even an iota of evidence to the effect that Surinder Pal Sharma had entered into the compromise in connivance with Mula Singh or against the wishes of Mohtmim of the Thakar Dawara. Thus, it cannot be held that the compromise entered into by Surinder Pal Sharma in pursuance of which the impugned order was passed, was in any way collusive or was not binding on the plaintiff.

Another argument of the learned counsel for the appellant that the Assistant Collector passed the order allowing the application of the tenant without any evidence on the record is also without any basis. The provisions of section 18 of the Act need reference in order to show that Mula Singh''s application was rightly allowed. Section 18 reads as under:-

"18. Rights of certain tenants to purchase land. - (1) Notwithstanding anything to the contrary contained in any law, usage or contract a tenant of a landowner other than a small landowner-

(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or

(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amount to six years or more, or

(iii) who was ejected from his tenancy after the 14th day of August, 1947, and before the commencement of this Act, and who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at any time and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act."

In the light of the provisions of section 18 of the Act, it is to be seen as to whether there was any evidence before the Assistant Collector or whether any evidence had been led to show that tenant Mula Singh defendant fulfilled all the requirements of section 18 of the Act and he was entitled to get the land said to have been purchased by him. In the present case, the defendant had adduced oral and documentary evidence to show that he was in possession of the suit land as a tenant prior to coming into force of the said Act. He produced Exhibit D14, dated October 14, 1963 which was the report of the Naib Tehsildar in which it had been held that the tenant was an old tenant since the year 1952-53 and pre-consolidation and post consolidation Khasra Numbers were given in this report of the Naib Tehsildar to prove that the suit land was surplus area of the landowner. The report was sent to the Tehsildar, Batala who vide his report dated November 18,1963 forwarded the same to Sub Divisional Officer (Civil), Batala for approval of the report made by the Naib Tehsildar and Collector Agrarian approved this report vide his order, dated December 3, 1963. Exhibits D14 and D15 and D16 establish beyond doubt that the defendant was a tenant over the suit land prior to 1953. Hazari Lal (DW2) Patwari was also summoned with Khasra Girdawari for the year 1952-53. However, he stated that the same was not available in the record. Even DW5 Muni LaL, Office Quanungo was summoned to produce Khasra Girdawaris from the year 1930 to 1953. He, however, stated that the same were not available in the record However, Exhibits D14 and D16 clearly establish that the defendant was a tenant over the suit land prior to 1953. The defendant also produced copies of Khasra Girdawaris Exhibits D7 and D8 for proving his possession over the suit land as tenant for continuous period of six years prior to the making of an application u/s 18 of the Act. He also tendered into evidence copy of the jamabandi Exhibit DW4/A relating to the year 1965-66 which shows that he was a small landowner and the disputed land was his permissible area. In order to prove that the disputed, land was not the reserved area of the plaintiff. Exhibit DA, certified copy of Form E, had been produced which showed that the land situated in village Dhianpur was got reserved by the landlord and disputed land situated in Village Khera Sultan was never reserved and it was part of the surplus area. Exhibit Dll is the certified copy of the statement of Sowran Singh, Clerk Agrarian before the Assistant Collector First Grade, Batala who passed the impugned order and Kapur Chand Mukhtiar of the plaintiff as PW1 also admitted that the land was not the reserved area of the plain- tiff. Exhibit D4 copy of the order of Agrarian Collector, dated March 6, 1961, had been produced to show that the land situated in village Khera Sultan was a part of the surplus area of the landowner. Kapur Chand (PW1) also admitted that the plaintiff was a big landowner. Similarly Mula Singh defendant asserted that the plaintiff was a big landowner. Exhibit D9 is the certified copy of the statement of Chajju Ram Patwari made by him before the Assistant Collector, First Grade on June I, 1971 with respect to the price of the land. Exhibit DW5/1 is the average price value for the land for the last ten years which was produced before the Revenue Officer and Exhibit D12 is the average price chart produced in the Court, according to which value was Rs. 2036/- per acre and the defendant had already deposited Rs. 60,000/- for the purchase of the land. Exhibit DW3/1 is the average price of the land, according to which the value of the land was Rs. 1,597/-. Exhibit D7 is the copy of Khasra Girdawari from harvest Kharif 1961 to Rabi 1971 showing the defendant is tenant under the plaintiff on payment of Rs. 250/- yearly. So, the documentary evidence on record establishes that the disputed land was outside the plaintiffs reserved area and it being permissible area of the defendant-tenant out of the surplus area, does not diminish the area of the plaintiff which could have been declared as surplus area. The very perusal of the documentary evidence on the record established that Mula Singh defendant was a tenant for a continuous period of six years prior to moving an application u/s l8 of the Act and the suit land was outside the reserved area of the landowner and was not his permissible area. Thus, from the documentary evidence on the record, it stands established that defendant Mula Singh fulfilled all the requirements of section 18 of the Act and was legally and validly authorised to make an application u/s 18 of the Act and his application would have succeeded even in the absence of the alleged com- promise. There is no evidence on the record to show that the landowner in any way colluded with the tenant for ulterior motive of shrinking the surplus area. Rather, it stands established that the land which was beyond the reserved area of the land- owner had been utilised by way of purchase in favour of a person who was in continuous possession for six years prior to the making of an application and who had been proved to be an old tenant by valid documentary evidence. Thus, the impugned order is not against any provision of the Act, rather it is in conformity with the provisions of the Act. It cannot be said that the compromise entered into goes against the public policy or statutory provisions of the Act or has been passed to defeat the aims and objects of the Act. Merely because the Assistant Collector failed to write in the judgment what was pleaded, cannot lead to the conclusion that the order was passed without judicially satisfying himself or was passed without application of mind or without satisfying himself about the existence of the right of the applicant to exercise right of purchase by him. Moreover, there was ample evidence before the Assistant Collector to reveal that Mula Singh was in continuous possession of the disputed land as a tenant for a continuous period of six years prior to his making the application u/s 18 of the Act. There was also evidence before the Assistant Collector that the disputed land was the permissible area of the tenant and was not the reserved area of the plaintiff. Thus, from the documentary evidence, it stands established that even before the Assistant Collector, defendant Mula Singh fulfilled all the conditions enumerated in section 18 of the Act for exercise of his right to purchase the land in dispute.

The learned counsel for the appellant has further stated that the findings of the lower appellate Court that the civil Court''s jurisdiction was barred to try the present suit, is also liable to be set aside. I do not agree with this contention of the learned counsel. Section 25 of the Act reads as under:-

"25. Exclusion of Courts and authorities.-Except in accordance with the provisions of this Act, the validity of any proceedings or order, taken or made under this Act, shall not be called in question in any Court or before any other authority."

In the case in hand, the plaintiff appellant had availed of the remedies available to him under the Act. Admittedly, the plaintiff had first submitted to the Revenue Court''s jurisdiction and unsuccessfully tried his level best to get the orders adverse to him set aside from the forums set up under the Act. It is only after exhausting all the remedies under the Act that the plaintiff knocked at the door of the Civil Court. Section 25 of the Act specifically states that the validity of any proceedings or order, taken or made under the Act, shall not be called in question in any Court or before any other authority, and the impugned order is not such an order which is without jurisdiction or otherwise a nullity in the eye of law, so that, the Civil Court could assume jurisdiction. It has even been held by the trial Court that the impugned order was within the four corners of the Act and has not been passed in contravention of the Act. Similar was the finding of the lower appellate Court. In these circumstances, I concur with the finding of the lower appellate Court that the jurisdiction of the Civil Court was barred to try the suit in hand.

No other point has been urged nor requires going into.

The appeal resultantly fails and, is dismissed. No order as to costs.