In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 2577 of 1982 Date of decision: May 05, 2009 Sohan Singh .. Appellant Vs. Union of India and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Vikas Singh, Advocate for the appellant. Mr. S.C. Kapoor, Sr. Advocate with Mr. Harminderjit Singh, Advocate for the respondents. A.N. Jindal, J This regular second appeal has arisen out of the judgment dated 10.9.1982 passed by the learned Additional District Judge, Hoshiarpur, dismissing the appeal of the plaintiff against the judgment and decree dated 19.11.1979 passed by the Sub Judge Ist Class, Hoshairpur, dismissing the suit of the plaintiff-appellant (herein referred as 'the plaintiff') for possession with costs. Sohan Singh plaintiff (now represented by his legal representatives) had earlier filed a suit for declaration in the alternative for possession of the property in dispute against Union of India claiming the same to be his ownership and got an ex-parte decree in his favour vide judgment dated 8.12.1961 (Ex.P4) and decree sheet Ex.PW4/A. The land in dispute is stated to have been allotted to him in lieu of the previous land as described in para No.2 of the plaint whereafter the present suit for possession was filed. While going back to the history of the case, the plaintiff is claiming himself to be the owner by way of acquiring the occupancy rights from Achari Devi who had died issueless in the year 1951 and he being the collateral along with Sant Singh and Basawa Singh, having inherited the occupancy rights had become the owner of the suit property. Subsequently, Sant Singh and Basawa Singh also died. Thereafter, he by virtue of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 had become R.S.A. No. 2577 of 1982 -2- *** the sole owner of the property in dispute. He has further alleged that the property in dispute was once held by Jodha, common ancestor of the plaintiff and Achari Devi, aforesaid, in the jamabandi relating to the year 1952-53 and name of Santi was erroneously recorded. The plaintiff later on filed a suit for declaration and in the alternative for possession against Union of India and obtained ex-parte decree on 8.12.1961. He has further alleged that Union of India has leased out the suit land to several persons including the defendants No. 3 to 7, therefore, the suit for possession has been filed. The defendants contested the suit claiming that the suit property being an evacuee property vested in Union of India, Civil Court had no jurisdiction to try the suit; suit is time barred and barred by the principle of resjudicata. Achari Devi did not inherit the occupancy rights in the land in dispute after the death of her husband. It was also averred that the suit land vested in the custodian after the death of Achari Devi. The Civil Court decree, having been passed by a court which was not competent and had no jurisdiction to try the suit, is a waste paper, as such, the same is not binding upon the defendants; transfers made by the Union of India- defendant No.1 were perfectly legal and valid. Union of India further denied if the property in dispute devolved upon the plaintiff after the death of Achari Devi. Union of India, though admitted that Santi was erroneously recorded as owner in the jamabandi recorded in the year 1952-53 and that the land as described in para No.2 of the plaint (allotted during consolidation) was in lieu of the land now in dispute, denied that the suit land was held by Jodha common ancestor of Achari Devi and the plaintiff at any time. On the pleadings of the parties, the following issues were framed by the trial court. 1. Whether the civil court has no jurisdiction to hear the present suit?OPD 2. Whether the suit is time barred? OPD (Defendants 3-4). 3. Whether the present suit is barred under Section 11 of C.P.C.? OPD (Defendants 3-4). R.S.A. No. 2577 of 1982 -3- *** 4. Whether Mst. Achhri was the widow of Khushia alias Khushan Singh? OPD (Defendants 1-2) 5. Whether the occupancy rights in the land in dispute devolved upon Mst. Achhri upon the death of her husband?OPP 6. Whether the land in dispute reverted to the Custodian after the death of Mst. Achhri? OPD (1 and 2) 7. Whether the occupancy rights devolved upon the plaintiff along with Ralla Singh, Basawa Singh after the death of Mst. Achhri? If so, its effect? OPD 8. Whether the occupancy rights devolved upon the plaintiff after the death of Ralla Singh and Santa Singh? 9. What is the effect of the previous suit filed by the plaintiff against the Union of India?OPP 10. Whether the lease made by the defendant No.1 in favour of the defendants No.3 and 4 measuring 23 -K, 11-M and land measuring 4 Kanal 8 marlas with defendants No.5 and 6 and land measuring 3-K 12-M in favour of the defendant No.7 is invalid and not binding upon the plaintiff?OPP 11. Relief. The trial court after scrutinizing the entire evidence decided issues No.2, 3, 4 and 5 in favour of the plaintiff, whereas, findings on issues No.1 and 6 to 10 were recorded against him, as a sequel of the aforesaid findings, the suit of the plaintiff was dismissed. The appeal preferred by Sohan Singh deceased met with the same fate. The substantial questions of law involved in the present appeal are as under :- 1. Whether the findings of the Courts below, that civil court has no jurisdiction are patently erroneous? 2. Whether courts below have misinterpreted Section 46 of Administration of Evacuee Property Act? R.S.A. No. 2577 of 1982 -4- *** 3. Whether the courts below have committed patent error in interpreting Section 59 of Punjab Tenancy Act? 4. Whether the courts below have committed patent error in appreciating the scope of Occupancy Tenants Vesting of Proprietary Rights, Act? 5. Whether courts below have wrongly held that the suit was time barred? Before entering into controversy regarding the jurisdiction of the civil court, history of the case relating to the ownership of the property is to be gone into. Undisputedly, the suit property was owned by the Mohammedans who migrated to the Pakistan at the time of partition. It is also worth noticing that mutation regarding the suit property was sanctioned in favour of the custodian as early as in the year 1953, which is evident from the copy of the order Ex.D-2 dated 13.3.1954 passed by the Additional Commissioner. The copy of the grounds of appeal Ex.D-3 dated 27.8.1966 placed on record reveal that the mutation in favour of Union of India was sanctioned vide order of Collector on 8.7.1953. The appeal preferred by the plaintiff Sohan Singh against the said order was dismissed by the Additional Secretary Revenue exercising the powers of Commissioner, Jalandhar Division, Jalandhar. These documents further depict that the suit property vested in the custodian, free from all incumbrances much prior to the filing of the suit by the plaintiff in which an ex-parte decree Ex.PW2/A was passed on 8.12.1961. The case of the plaintiff from the very beginning is also that the suit property was evacuee property, therefore, this fact cannot be denied that the suit was evacuee property. In such a situation, the jurisdiction of the civil court is certainly barred to entertain the suit for adjudicating if any property is evacuee or not. This question became a subject of debate before the Apex Court in case Custodian, Evacuee Property Punjab and others vs. Jafran Begum, AIR 1968 Supreme Court 169 wherein it was observed as under :- “Generally speaking the jurisdiction of the civil or revenue R.S.A. No. 2577 of 1982 -5- *** court is barred under Section 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to interest therein is or is not evacuee property. Where the question whether certain properties are evacuee properties has been decided under Section 7 etc., whether that decision is based on issues of fact or issues of law, the jurisdiction of courts is clearly barred under Section 46 (a). No distinction can be drawn between decisions under Section 7 based on questions of fact and decisions based on questions of law. The decision is made final, whether based on issues of law or of fact by Section 28 and Section 46 bar the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated. Case law discussed. AIR 1963 Punj 40 (FB) Reversed; AIR 1951 Mad 930, Overruled. The Act is a complete code in itself in the matter of dealing with evacuee property. Section 7 of the Act gives power to the Custodian to determine what properties are evacuee properties. Two questions will arise in every case where the Custodian has to declare whether a property is evacuee property. These two questions are (i) whether a particular person has or has not become an evacuee and (ii) whether the property in dispute belongs to him. Both these questions have to be decided under S. 7 of the Act by the Custodian. There is nothing in Section 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the Custodian cannot decide what are called complicated questions of law or question of title. Under Section 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being R.S.A. No. 2577 of 1982 -6- *** decided as a condition precedent to his assuming jurisdiction. In these circumstances Section 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in Section 4 (I) of the Act which provides that the Act override Section 9 of the Code of Civil Procedure on a combined reading of Section 4, 28 and 46. But Section 46 or Section 28 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution for that is a power conferred on the High Court under the Constitution.” In the facts and circumstances of the present case, it would not be unsafe for this court to observe that the suit property having been held to be evacuee property, civil court had no jurisdiction to adjudicate the question with regard to nature of such property while sitting over the findings of the custodian general regarding the nature of the property. When once Custodian had already declared a property as evacuee and mutation with regard to the same sanctioned; the plaintiff also tried his luck by filing appeal before the hierarchy of the courts as provided under the law, now he is estopped to challenge the same again before the civil court in view of the specific bar created by Section 46 of Administration of Evacuee Property Act (31 of 1950) as such the decree passed by the civil court dated 8.12.1961 was certainly beyond jurisdiction and nullity in the eyes of law. The same having no binding force cannot be treated as a conclusive to hold that the suit property was the ownership of the plaintiff by virtue of that decree. As such, the substantial questions of law at No.1, 2 and 3 are answered against the plaintiff. Now coming to the claim set up by the plaintiff that common ancestor Jodha and Achari Devi were in possession of the property in dispute, as such the plaintiff having inherited the occupancy rights have become the owner of the property, it may be noticed that the said contention lacks merit. According to the plaintiff Achari Devi was in possession of the property as occupancy tenant and she died in the year 1951, obviously R.S.A. No. 2577 of 1982 -7- *** before the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 came into force. In these circumstances, contention of the learned counsel for the plaintiff that the property in dispute devolved upon them by virtue of the statutory provisions also does not find substance because on the death of Achari Devi, much prior to the enforcement of the Act of 1952. Achari Devi had died and occupancy rights stood extinguished by virtue of the provisions of Section 59 of the Punjab Tenancy Act as the plaintiff and other persons are not proved to be the legal heirs entitled to inherit the occupancy rights in respect of the property in dispute and they and their common ancestors were also not proved to be in possession of the suit property. Here it would be relevant to reproduced Section 59 of the Punjab Tenancy Act, 1887 which reads as under :- “59. Succession to right of occupancy - (1) When a tenant having a right of occupancy in any land dies, the right shall devolve - (a) on his male lineal descendants, if any, in the male line of descent, and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom, and © failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom. (d) failing such descendants and widow, or widowed mother or if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or © of this sub-section, on his male collateral relatives in the male line on descent from the common ancestor of the deceased tenant and those relatives. Provided, with respect to clause (d) of this sub- section, that the common ancestor occupied the land. Explanation - For the purpose of clause (d), R.S.A. No. 2577 of 1982 -8- *** land obtained in exchange by the deceased tenant or any of his predecessors-in-interest in pursuance of the provisions of sub-section (1) of Section 58-A shall be deemed to have been occupied by the common ancessor if the land given for it in exchange was occupied by him. (2) As among descendants and collateral relatives claiming under sub-section (1) the right shall, subject to the provisions of that sub-section, devolve as if it were land left by the deceased in the village in which the land subject to the right is situate. (3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sublease for a term exceeding one year. (4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom, his right of occupancy may devolve under that sub-section, the right shall be extinguished.” From the bare reading of the aforesaid provisions, it comes out that the male collateral as plaintiff and others of Achari Devi would have been entitled to inherit the occupancy rights after the death of Achari Devi only in case the plaintiff had been able to prove that the land in dispute was once occupied by the common ancestors. Factually, the plaintiff did not directly succeed to Achari Devi from the line of descendants out of the legal heirs as provided under clauses I, II or III of the Hindu Succession Act. They are remote collaterals. Had Achari Devi been in possession, then certainly the plaintiff having entered into possession would not have come to file the suit for possession. The lower Appellate Court also did not accept Achari Devi in possession. It has also been alleged by the plaintiff in his plaint that common ancestors i.e. Jodha also once held the suit property as occupancy tenant, but that fact has also not been proved by him by leading cogent evidence. So, in view of the provisions of Section 59 of the Punjab Tenancy Act, reproduced above, the suit property never devolved upon the plaintiff and other collaterals as shown in the pedigree table as R.S.A. No. 2577 of 1982 -9- *** mentioned by the Lower Appellate Court in its judgment. Sub-section (4) of Section 59 of the Punjab Tenancy Act, further provides that if the deceased tenant had left no such person as are mentioned in sub-section (1) on whom his right of occupancy devolved under that section, the rights shall be extinguished. In view of the express provisions referred to above and also the facts brought on record, the tenancy rights in respect of the property in dispute if any, stood extinguished on the death of Achari Devi in the year 1951. The plaintiff has not set up any plea that subsequently any ownership rights were acquired or vested in Achari Devi plaintiff and other collaterals of Achari Devi's husband. Since the Lower Appellate Court has already held that the suit was not barred by time and apparently it appears that the suit was not barred by time, substantial question of law at No.6 need no further probe and is decided in favour of the plaintiff. However, rest are decided against the appellant. In the wake of the aforesaid discussions, the appeal being devoid of any merit is dismissed. May 05, 2009 (A.N. Jindal) deepak Judge