IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH === Regular Second Appeal No. 483 of 2005 Date of Decision: 13.3.2008 Dalip Singh alias Daljit Singh --- Appellant Versus Punjab State through Tehsildar (Sales), Ajnala and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. B.R. Mahajan, Advocate for the appellant. Mr. Arvind Mittal, Additional Advocate General, Haryana for respondent No.1. Mr. Veneet Sharma, Advocate for respondent Nos. 2 to 4. --- AJAY KUMAR MITTAL, J. Failure to get the desired decree for declaration with consequential relief of permanent injunction from the courts below gave a cause to the plaintiff to file the present second appeal. The dispute between the parties is with regard to change of a hunk of land with each other. The facts of the case in brief are that the plaintiffs Dalip Singh and Karaj Singh (through legal representatives) filed a suit for declaration to the effect that they were entitled to allotment of Khasra No. 103//15(8-0) on the basis of their old possession and defendant No.2 was entitled to Khasra No. 103//9/1, 9/2(8-0) and the order of allotment dated 4.3.1986 in respect of Khasra No. 103//15 was a clerical mistake, on the averments that one Sukhnandan Singh and R.S.A. No. 483 of 2005 Parmbir Singh were in possession of 194 Kanals 8 Marlas of land to the extent of half share whereas the remaining half share of the said land was in possession of the plaintiffs. Out of the aforesaid total land, land measuring 80 Kanals was allotted to Mohinder Kaur mother of defendant No.2, which included Khasra No. 103//9/1, 9/2. As per compromise arrived at between the aforesaid two persons, i.e. Sukhnandan Singh and Parambir Singh and the plaintiffs, the latter delivered possession of land measuring 80 Kanals to defendant No.2, bearing Khasra Nos. 102/6, 15, 16, 103/10,11, 12, 13, 14, 20/9/1, 9/2. Khasra girdawris showing the change to the above effect were got corrected accordingly. Later on, the plaintiffs came to know that due to some clerical mistake, Khasra No. 103/15 had been wrongly allotted to defendant No.2 in lieu of Khasra No. 103//9/1, 9/2. The matter was brought to the Chief Sales Commissioner, Ajnala who remanded the matter to the Tehsildar (Sales), Ajnala vide order dated 12.11.1991 and the latter authority allotted Khasra No. 103//15 along with some other land, in favour of the plaintiffs. The plaintiffs deposited Rs. 2373.50 as earnest money of the sale price of the land in the year 1991. The plaintiffs raised a grievance that the allotment order in their favour was wrongly set aside by the Chief Sales Commissioner vide order dated 31.3.1992 as it was done without considering their rightful claim. The revision carried against the order dated 31.3.1992 was also dismissed by the Commissioner, Jalandhar Division, Jalandhar. The contest was presented by defendants Nos. 2 to 4 only who, as a preliminary objection taken in their written statement, stated that Khasra No. 103/15 was allotted to Mohinder Kaur widow of Beer Singh under the Fauji Allotment Scheme of the Punjab Government on 4.3.1986 and the plaintiffs had no right to allotment of the same Khasra No. nor do they had any locus standi to file the instant suit. Various other 2 R.S.A. No. 483 of 2005 objections regarding limitation and jurisdiction were also taken by the contesting defendants. It was further stated that land measuring 80 Kanals was allotted to Mohinder Kaur vide order dated 4.3.1986 and defendant No.2 had taken physical possession of the suit land. It was denied that the suit land was originally owned and possessed by the plaintiffs. Sukhnandan Singh and Parambir Singh were owners in possession of half share of the land who delivered the possession of half share of the land to the defendants and defendant No.2 was the owner in possession of the suit property through her husband i.e. defendant No.3. The order dated 4.3.1986 in favour of Mohinder Kaur was never challenged by the plaintiffs for almost nine years and now they had no right to rake up the question of allotment or re-allotment of Khasra No. 103/15. The defendants further stated that in case the plaintiffs had in their custody any corrected Khasra girdawris in their name qua the land in dispute, the same was based on fraud. Various issues were framed by the trial court. On appreciation of the evidence, the trial court returned a finding that the plaintiffs already having exhausted their remedies under the Punjab Package Deals Property (Disposal) Act, 1976, (for short “the Act”), the jurisdiction of civil court was barred under Section 16 of the said Act and, the suit was held to be partially not maintainable qua the relief of allotment of the land bearing Khasra No. 103//15. thus, they had no legal right to seek the declaration prayed for; since the land bearing Khasra No. 103//15 had already been allotted in the name of Mohinder Kaur, mother of defendant No.2, the same could not be allotted in favour of the plaintiffs. The trial court further recorded that the plaintiffs had failed to show their possession on Khasra No. 103//9 prior to 30.10.1990 when Khasra girdawari was corrected and also that Khasra Girdawari was corrected on compromise, and, therefore, the plaintiffs were held not 3 R.S.A. No. 483 of 2005 entitled to possession of the land bearing Khasra No. 103//9. The plaintiffs were further held not entitled to the relief of permanent injunction restraining the defendants from taking possession of Khasra No. 103//15 in any manner. No merit was found in the plea of the defendants that the suit was barred by limitation. In the wake of findings aforesaid, the suit was dismissed vide judgment and decree dated 27.10.2003. The appeal carried by the plaintiffs was dismissed by the first appellate court vide judgment and decree dated 15.12.2004. It is worth noticing here that during the pendency of the appeal before the first appellate court, the plaintiffs moved an application under Order 41 Rule 25 of the Code of Civil Procedure praying for framing of certain issues on the ground that the same had not been framed by the trial court and it was quite necessary to frame the said issues. The plaintiffs moved another application under Order 41 Rule 27 of the Code of Civil Procedure for tendering certified copies of order dated 31.10.1990 passed by the Assistant Collector IInd Grade, Ajnala, order dated 9.10.1990 passed by the Tehsildar (Sales) Ajnala, and order dated 12.11.1991 passed by the Sales Commissioner, Ajnala, by way of additional evidence. Both the applications were stoutly contested by defendant Nos. 2 to 4 by filing reply. The first appellate court, after considering the matters and hearing counsel for the parties, dismissed both the applications by speaking orders contained in the judgment itself. On the merits of the controversy, the first appellate court concurred with the findings returned by the trial court and consequently dismissed the appeal. I have heard learned counsel for the parties and have perused the record. 4 R.S.A. No. 483 of 2005 The findings returned by the courts below are concurrent findings of fact based on correct appreciation of the oral and the documentary evidence available on record. Learned counsel for the appellant strenuously urged that the findings are based on no evidence inasmuch as the oral evidence produced by the defendants did not corroborate and support the documentary evidence on the record. The submission of the learned counsel is totally misplaced in the wake of the fact that the defendants produced four witnesses in their evidence and the versions put forth by them were in line with the documents produced by them on the record. No infirmity or perversity could be pointed out by the counsel for the appellant to persuade this Court to interfere with the said findings. Qua the relief of declaration, it has been rightly held by the courts below that the civil court had no jurisdiction to decide and entertain the controversy because of the bar contained under the provisions of Section 16 of the Act. No substantial question of law is shown to have arisen in this appeal for consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) March 13, 2008 JUDGE *RKMALIK* 5