Civil Writ Petition No.2505 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 02, 2009 Parbhati & another .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Ranjit Saini, Advocate, for the petitioners. Mr.Yashwinder Singh, AAG, Haryana, for respondent Nos.1 to 3. Mr.Som Nath Saini, Advocate, for respondent No.4. **** RANJIT SINGH, J. Claiming himself to be tenant over the disputed land since 1950, the petitioners have filed this writ petition to impugn the order passed by Sub Tehsildar (Sales), who has directed delivery of Civil Writ Petition No.2505 of 2008 (O&M) : 2 : possession of the land to respondent No.4. The claim of the petitioners is that in various jamabandies starting from the year 1951 onwards, father of the petitioners, Bholu Ram is recorded as Chakotedar and after his death, the petitioners have inherited this tenancy. It is also claimed that the petitioners are in a continued possession as tenants over the land. Case further is that the petitioners have raised substantial construction of pucca residential houses over the land and are residing there alongwith their families. The land has been sold by the Rehabilitation Department to various persons, including Dr.Dev Raj Taneja and his son Gautam. They have, thus, started interfering in the possession of the petitioners over the part of the land. It is stated that petitioner No.1 filed a civil suit, which was decreed by Civil Judge (Senior Division), Narnaul, on 11.10.1995 and the defendants were restrained from interfering in the use and possession of the petitioners. Subsequently, one Kamal Kishore purchased part of this land in dispute and has filed a suit for ejectment and arrears of rent, concerning part of this land in the Court of Assistant Collector Ist Grade, Narnaul. It was held that the petitioners are in possession as Chakotedar since 1955 and the arrears of rent works out to be Rs.30.40Paise, which the petitioners were directed to deposit. This was complied with. The petitioners had also approached the authorities of Rehabilitation for allotment of the land in question, claiming to be in possession for a long period in terms of the policy framed by Government of Haryana. This prayer of the petitioners was declined. Petitioner No.1 thereafter filed a writ petition before this Court Civil Writ Petition No.2505 of 2008 (O&M) : 3 : bearing No.5656 of 2004, which was dismissed on 26.10.2006. Feeling aggrieved against the same, he preferred S.L.P.(Civil) No.876 of 2007, which was also dismissed. Thus, the prayer of the petitioners for sale of this land to them was declined and which order acquired finality upto Supreme Court. The Government officials rightly directed Girdawar Halqa to deliver possession of the land to respondent No.4, the same having been sold to him. It is against this order that the petitioners have now filed the present writ petition saying that the order directing delivery of possession, despite the petitioners being Chakotedars is wholly illegal, unjustified and unsustainable in the eyes of law. Prayer is that the petitioners can only be evicted from the land by following the procedure prescribed under Sections 7 and 7A of the Pepsu Tenancy and Agricultural Land Act, 1955. Notice of motion was issued. Reply is filed. Mr.S.N.Saini, appearing for respondent No.4, has raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioners would be barred from filing the present petition and so also the writ petition in view of the earlier order passed by this Court, which has acquired finality upto Supreme Court. Even on merits, it is contended that the petitioners can not be permitted to take different stands at different times to seek relief. Earlier the petitioners were seeking allotment of the land as per the policy, claiming themselves to be unauthorised occupants. Having failed in their challenge, now the petitioners claim themselves to be the tenants. All such pleas were required to be raised in earlier writ petition or the proceedings initiated by the petitioners and that having Civil Writ Petition No.2505 of 2008 (O&M) : 4 : not done, the present petition will be barred by provisions of Order 2 Rule 2 CPC. The counsel would accordingly contend that this petition deserves to be dismissed on this short ground. In an earlier writ petition filed by petitioner No.1, it was claimed that land is in their possession even prior to 1955 and without considering the said claim, the land was auctioned on 23.12.1988 in favour of respondent Nos.5 to 7 (in the said writ petition). The objection filed by the petitioners against this auction were rejected and the same was confirmed by the Chief Settlement Commissioner. This was challenged by filing a writ petition, which was dismissed. If the stand of the petitioners before the Chief Settlement Commissioner is noticed, some of the brothers of the petitioners did not want to pursue their petition and their challenge was accordingly dismissed as withdrawn and the challenge money deposited by them was ordered to be refunded. Before the Chief Settlement Commissioner, the stand was that the land was required to be transferred on the basis of unauthorised occupation on the basis of the Government instructions. It was also noticed that the petitioners were not entitled to transfer of this land as per the prevailing instructions as she had not applied within the stipulated period. These instructions were repealed and as per the new policy, she was not entitled to claim transfer. The claim of the petitioners was accordingly rejected and up-held upto the Hon'ble Supreme Court, as noticed. When attention of counsel for the petitioners is invited to these facts, he would contend that the petitioners could not have claimed the land on the basis of tenancy earlier and as such, the Civil Writ Petition No.2505 of 2008 (O&M) : 5 : order passed by the authorities would not stand in their way. The claim that they, as a tenants, have a right to remain in possession, till they are evicted by following a procedure in accordance with law has now arisen when action is on to dispossess the petitioners. It is seen that the right of the petitioners for allotment of this land was declined on the ground that the land has already been auctioned in favour of respondent No.4 and others. The petitioners sought allotment of the same very land by claiming them to be in unauthorised possession. If they were tenants on the land, they could not have sought allotment thereof in view of the policy. The present approach appears to have been made by the petitioners only once they have remained unsuccessful in seeking allotment of this land, being in unauthorized occupation thereof. Mr.S.N.Saini would also say that the petitioners have not truly translated the entries in the jamabandies, where they are shown as Gair Marusi tenants, which is a tenant at will and not a tenant who is paying Chakota. Once the challenge raised by the petitioners in regard to the auction has been adjudicated by this Court, any order now sought may run contrary to the order passed by the Division Bench and so too by the Hon'ble Supreme Court. The petitioners have filed this petition only with an aim to protect their possession, which they could not succeed in an earlier round of litigation. The petitioners were well within their right to raise this plea available to them that they are tenants, in an earlier round of litigation, where they claimed themselves to be in unauthorised possession. They can not be permitted to take different stands at different times as is being done. Order 2 Rule 2 CPC would stand in their way. Civil Writ Petition No.2505 of 2008 (O&M) : 6 : The present writ petition, as such, is not maintainable and deserves to be dismissed with costs. It is so ordered. The petition is dismissed with costs of Rs.10,000/-. February 02, 2009 ( RANJIT SINGH ) khurmi JUDGE