R.S.A.No.2642 of 1985(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A.No.2642 of 1985(O&M) Date of Decision: June 2, 2011 Soni .....Appellant v. Kanchan and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Amit Jain, Advocate for the appellant. Mr.R.M.Singh, Advocate for the respondents. ..... RAM CHAND GUPTA, J. Facts giving rise to the present Regular Second Appeal are as under:- Appellant-plaintiff filed a suit against respondents-defendants for declaration to the effect that he is owner in possession of the suit land described in para no.1 of the plaint and that defendants are having no right or interest in the same with consequential relief of injunction restraining respondents-defendants from interfering in his possession over the suit land. Plea has been taken that he has been continuing in possession of the land in dispute total measuring 9 kanals 10 marlas as Maurusi, at a fixed chakota (rent) of `.2.25 per bigha per year by the owner about 50 years back and that the land was banzar at that time and he made the same cultivable. Plea has also been taken that when he was inducted as tenant, the owner agreed that neither the rent would be increased nor he would be dispossessed from the land in dispute in any circumstances and hence, it is R.S.A.No.2642 of 1985(O&M) -2- pleaded that since he was inducted as a tenant, neither rent was increased nor he relinquished his possession. Hence, it is contended that after coming into force of Punjab Occupancy Tenant (Vesting of Proprietary Right) Act, 1953, (for short `the Vesting Act'), appellant-plaintiff became owner of the land in dispute. Suit was contested by respondents-defendants on the ground that defendant no.1 had purchased the suit land from State of Haryana from the surplus pool as earlier he was in possession of the same as tenant. It is denied that appellant-plaintiff was in possession of the same as tenant for the last 50 years and that he had acquired ownership rights after coming into force of the Vesting Act. Preliminary objections regarding maintainability of the suit, locus standi of the appellant-plaintiff to file the suit and the fact that the Civil Court is having no jurisdiction to entertain the suit have also been raised. On the pleadings of the parties, following issues were framed by learned trial Court:- “1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 2. Whether plaintiff was in possession of the suit land as Gair Maurusi at a fixed Chakota for the lat about 50 years as alleged? OPP 3. Whether there was any implied contract between the parties that the plaintiff shall not be ejected from the suit land as alleged? If so to what effect? OPD 4. Whether plaintiff has become entitled to occupancy tenancy rights, as alleged, if so to what effect? R.S.A.No.2642 of 1985(O&M) -3- 5. Whether plaintiff has no locus standi to file the present suit, as alleged? OPD 6. Whether the suit is not maintainable in the present form, as alleged? 7. Whether defendant Kanchan has no concern with the suit land, as alleged? If so to what effect? OPD 8. Whether the suit is liable to be dismissed with special costs u/s 35-A CPC, as alleged, if so how much. 9. Relief.” Parties adduced evidence in support of their respective contentions. Learned trial Court discussed issues no.1 to 4 together and decided the same in favour of appellant-plaintiff. Issues No.5 and 7 were decided against the defendants and however, issues no.6 and 8 were not decided on the plea that they have become redundant in view of the findings on issues no.1 to 4. As a result of findings on various issues, suit filed by appellant-plaintiff was decreed. Aggrieved against the said judgment and decree passed by learned trial Court, respondents-defendants filed appeal before learned Additional District Judge II, Faridabad, which was accepted by learned first Appellate Court and the judgment and decree passed by learned trial Court was modified to the extent that respondents-defendants were restrained from dispossessing the appellant-plaintiff from the land in dispute, except in due course of law and, however, findings of learned trial Court for declaration that appellant-plaintiff has become owner of the land in dispute by virtue of Vesting Act was set aside. It was held that Court has R.S.A.No.2642 of 1985(O&M) -4- no jurisdiction to go into the said matter and that it was exclusive jurisdiction of the Revenue Courts by placing reliance upon Smt.Kishno and another v. Gurdip Singh and another, 1983 CLJ (C.&Crl.) 331-332 and Chandu Lal and other v. S.K.Chhibar and others, 1983 CLJ (C. & Crl.) 622. Aggrieved against the said judgment and decree passed by learned first Appellate Court, appellant-plaintiff filed this Regular Second Appeal before this Court, which was admitted vide order dated 18.9.1985 without framing substantial questions of law. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, AIR 1978 Punjab and Haryana 137, had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs, (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure, on a substantial question of law. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been R.S.A.No.2642 of 1985(O&M) -5- observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others, (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. Hence, in view of this legal proposition, learned counsel for the appellant-plaintiff was asked to file substantial questions of law, stated to be arising in this appeal. Learned counsel for the appellant-plaintiff has filed the following substantial questions of law, stated to be arising in this appeal:- “(i) Whether in the facts and circumstances of the instant case, the learned first Appellate Court has erred in reversing the well considered judgment of learned trial Court? (ii) Whether in the facts and circumstances of the instant case the learned first Appellate Court has erred in holding that the Civil Court did not have the jurisdiction in the matter? (iii) Whether in the facts and circumstances of the instant case the jurisdiction of the civil Court would be barred in a case where title to property is to be decided on the determination of occupancy rights, which determination was only to substantiate the plea of ownership? (iv) Whether entries in revenue record alone would be sufficient to confer ownership without document of title? R.S.A.No.2642 of 1985(O&M) -6- (v) Whether a tenant admittedly holding occupancy rights would become owner after the commencement of Punjab Occupancy tenants (Vesting of Proprietary Rights) 1952, i.e., after the appointed day in the Act? (vi) Plaintiff having been proved to be in possession of the suit land since 1945 onwards would be entitled to be declared owner in lieu of the Punjab Occupancy tenants (Vesting of Proprietary Rights) 1952? (vii) Whether a stray entry in the revenue record can become a basis of presumption in favour of defendant-respondents qua possession in presence of numerous previous and subsequent entries in favour of plaintiff/appellants?” I have heard learned counsel for the parties and have gone through the whole record carefully. However, learned counsel for the appellant at the time of arguments has argued on substantial question of law no.2, as framed above. It has been contended by learned counsel for the appellant that learned first appellate Court has erred in holding that Civil Court is having no jurisdiction to go into the question as to whether plaintiff has acquired ownership rights by virtue of Vesting Act and that only revenue Court is having the jurisdiction. Rather it has been contended that law on the point has been settled by Full Bench of this Court in Shiv Charan v. The Financial Commissioner, Revenue Department, Haryana, and others, (2004-3) CXXXVIII PLR 569, wherein it has been held that after coming into force the Vesting Act, the Civil Court alone would have the jurisdiction R.S.A.No.2642 of 1985(O&M) -7- to determine the dispute envisaged in Section 77(3)(d) of the Punjab Tenancy Act, 1887 (for short `the Act') and the jurisdiction of the Revenue Court would be barred. Hence, it is contended that the case be remanded to learned first Appellate Court for deciding the appeal filed by respondents- defendants on merits afresh. Learned counsel for the respondents-defendants has not been able to rebut this argument of learned counsel for the appellant-plaintiff in view of Full Bench judgment of this Court rendered in Shiv Charan's case (supra). A careful perusal of Shiv Charan's case (supra) shows that earlier decision rendered by respective single Benches of this Court in Omkar Singh v. Nirmal (2000-3) 126 P.L.R. 361 and Jiwan v. Ram Sarup (1998-1) 118 P.L.R. 349 and the other likewise cases were over- ruled and it was held that the judgment of Single Bench of this Court in Puran Lal Aggarwal v. The Financial Commissioner, Haryana, (1992-2) 102 P.L.R. 669, relying upon a Division Bench judgment of this Court in Amin Lal v. Financial Commissioner, (Revenue), Haryana, (1972) 74 P.L.R. 96 lays down the correct law. Relevant paragraph of the Full Bench judgment in Shiv Charan's case (supra) reads as under:- “9. We are also of the opinion that the reliance of the learned counsel on Omkar Singh's and Jiwan's cases (supra) is misplaced. As already mentioned above, the learned Single Judge in Omkar's case merely noticed the judgment of this Court in Amin Lal's case and did not even remotely discuss the issues involved therein. In Jiwan's case, no reference was made to Amin Lal's case by the learned Single Judge though R.S.A.No.2642 of 1985(O&M) -8- primary reliance was placed on Raghbir Singh v. Beli Ram, (1967)69 P.L.R. 396 to hold that a revenue Court alone could go into the dispute. We, however, find from perusal of the judgment in Amin Lal's case that the Division Bench had differed with the ratio of the judgment in Raghbir Singh's case (supra) by observing that "We, with all respect to the learned Judge did not find ourselves in agreement with him." We are, therefore, of the opinion that the judgment of the Single Bench in Puran Lal Aggarwal's case (supra) relying on the decision of Amin Lal's case (supra) lays down the correct law. It has accordingly to be held that after the coming into force of the Vesting Act, the Civil Court alone would have the jurisdiction to determine the dispute envisaged in Section 77 (3)(d) of the Act and the jurisdiction of the revenue Court would be barred. The judgments of the Single Bench in Omkar Singh and Jiwan's cases (supra) and any other case likewise are over-ruled.” Hence, in view of the aforementioned legal proposition settled by Full Bench of this Court in Shiv Charan's case (supra), there is force in the argument of learned counsel for the appellant-plaintiff that learned first Appellate Court has committed illegality in coming to the conclusion that the Civil Court is not having jurisdiction in the matter. Hence, findings of learned first Appellate Court on the said issue is set aside and it is held that in this case only civil Court has the jurisdiction to decide the dispute as to whether appellant-plaintiff has acquired ownership right, after coming into force of the Vesting Act. R.S.A.No.2642 of 1985(O&M) -9- In view of these facts, the present Regular Second Appeal is accepted. Impugned judgment and decree passed by learned first Appellate Court is set aside. Case is remanded to learned first Appellate Court with direction to decide the same afresh in view of decision of Full Bench judgment of this Court in Shiv Charan's case (supra). As the matter is already become very old as the suit pertains to the year 1982, learned first Appellate Court is directed to decide the same expeditiously and efforts be made to decide the same within three months from the date of receipt of certified copy of this judgment. 2.6.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.