RSA No. 1155 of 2004 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1155 of 2004 Date of Decision: 11.7.2008 Mani Ram Bishnoi ....Appellant Versus Smt. Kaushlya Devi and others .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA Present: Shri Arun Jain, Senior Advocate, with Shri Amit Jain, Advocate, for the appellant. Shri Sudhir Mittal, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by learned first Appellate Court on 23.2.2004, whereby an appeal filed against the decree for possession, passed by the learned trial Court, was dismissed. The plaintiffs claim themselves to be owners to the extent of 7/10th share of the land measuring 43 kanals 1 marla, situated within the revenue estate of Fatehabad. The remaining land i.e. 3/10th share is stated to be owned by the State of Haryana. It is the case of the plaintiffs that the land was initially shown in possession of the tenant named Mansa Ram and later on in possession of his RSA No. 1155 of 2004 (2) son Sant Lal, but the physical possession of the land always continued with the plaintiffs. Defendant No.1 in collusion with Naib Tehsildar Gian Prakash Bishnoi got the Khasra Girdawari entries changed in his name on 30.11.1993, showing himself to be a Gair Marusi tenant to the extent of 1/3rd Batai. It is the case of the plaintiffs that defendant No.1 never remained in possession of the land, therefore, the change in the Khasra Girdawari entries is null and void. Since defendant No. 1 has entered possession on the basis of change in the Khasra Girdawari entries forcibly, therefore, the plaintiffs claim possession of the suit land through the present suit. The defendant-appellant resisted the claim of the plaintiffs, inter-alia on the ground that the suit of the plaintiffs is against the law and facts and that the plaintiffs have no locus standi to file the present suit. The jurisdiction of the Court to entertain the suit was also denied. Alternatively, it was pleaded that if defendant No.1 is found to be in its legal possession, then in that situation, he bas become owner thereof by way of adverse possession as he is in possession of the suit land for the last 12 years. It was further pleaded that the land is tenants permissible area and therefore, the plaintiffs have no concern with the same. Issue Nos. 1 and 7-A are the material issues, which read as under:- “1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP xx xx xx 7-A. Whether the suit land is permissible area of the tenant and vests in the State, if so, to what effect? OPD.” In respect of issue No.1, the learned trial Court has found that the suit land has been declared as surplus and the same stood vested with the State Government. It was also found that RSA No. 1155 of 2004 (3) though the plaintiffs cannot claim ownership, but their status is that of co-sharers. The learned first Appellate Court, however, held that the plaintiffs are co-sharers in the suit land and the suit land has not been partitioned by metes and bounds because of the pendency of the surplus litigation. In the present Regular Second Appeal, the claim of the appellant is that the land in dispute is the tenants permissible area. It is asserted that the land in dispute is tenants permissible area as the land vests with the State Government being part of surplus area. Once the stand of the defendant is that the land in question is a tenants permissible area being part of the surplus pool, the title of the plaintiff as owner of the suit land is deemed to be admitted prior to the declaration of the same as surplus. Whether the land is declared surplus or is part of the tenants permissible area would be subject matter of discussion, while discussing issue No. 7-A. In view of the above, the appellant cannot be permitted to raise an argument that the plaintiffs are not the owners of the suit land . In respect of issue No. 7-A, the learned trial Court returned a finding that the suit property has been declared as surplus, therefore, the land vests with the State Government unless the order whereby it was declared surplus is set aside by this Court in the writ petition. However, the learned first Appellate Court returned a finding that since the declaration of the land as surplus, is pending adjudication before this Court, therefore, the plaintiffs are owners of the suit land and that it cannot be said that the suit land is the tenants permissible area. Before this Court, learned counsel for the appellant has vehemently argued that the appellant has filed an application for purchase of the suit land being tenants permissible area, but the said application was not decided keeping in view the pendency of RSA No. 1155 of 2004 (4) the surplus case. Since the appellant is a tenant having purchased the tenancy rights from Sant Lal, therefore, the plaintiffs are not entitled to the decree for possession against the appellant. In fact, respondent Nos. 12 and 13 i.e. Chotu Ram and Rishal Singh, moved an application bearing CM No. 24058 of 2001 for their impleadment as a party. It was asserted by the said respondents that they have moved an application under Section 18 of the Punjab Security of Land Tenure Act, 1953. Initially, the said application under Section 18 of the Act, was adjourned to await the decision of the surplus case, but after the decision by the Financial Commissioner, an application was filed by the said respondents before the Assistant Collector for revival of the application for purchase. An order dated 27.2.2001, passed by the Assistant Collector has been filed with the Miscellaneous Application. A perusal of the said order would show that in fact, the apellant is the counsel for the applicants, who has filed an application for purchase of the land as tenants permissible area. Therefore, the stand of the appellant that an application for purchase of the land has been filed by the appellant or it was kept pending to await the decision of the surplus land case of the plaintiffs is not borne out of the record. It was the stand of the appellant before the learned first Appellate Court as recorded in para No. 19 of the judgment that the pendency of the litigation before this Court has no effect as far as the rights of the appellant are concerned. The declaration of surplus land of the plaintiff is subject matter of challenge in CWP Nos. 4756 of 2000 and 3911 and 3912 of 1983. Even otherwise, I do not find that the issues raised in the present suit are in any way connected or dependent upon the decision of the writ petitions, challenging the land to be a surplus land. The assertion of the appellant is based upon the purchase of RSA No. 1155 of 2004 (5) the suit land from Sant Lal. There is no issue regarding possession of Mansa Ram or Sant Lal or the transfer of such rights in favour of the appellant. In the absence of any such issue or the findings, the assertion that the appellant is in possession of the suit land as tenant, is not sustainable. Such was not the case set up before the Courts below. The entire case of the appellant revolves around his right over the land being tenants permissible area. However, in the absence of any assertion before the revenue authorities, which alone are competent to determine such questions of tenants permissible area, the defendant-appellant cannot permitted to raise an argument before the Civil Court that the land is a tenants permissible area. In fact, the application for purchase of land is not moved by the appellant. Learned counsel for the appellant has vehemently argued that this Court in the aforesaid writ petitions have only stayed the dispossession of the land owners. In the absence of any stay of the operation of the land being declared as the surplus, the land vests with the State Government, free from all encumbrances and, therefore, the plaintiffs have no locus standi to seek possession from the appellant However, I do not find any merit in the said argument raised by the learned counsel for the appellant, as well. The declaration of the surplus land is the subject matter of challenge before this Court. Thus, the declaration of surplus land has not attained finality. The interim order is only to protect the possession of the plaintiffs. Since the issue regarding surplus land is pending adjudication before this Court, the plaintiffs have a right to protect their rights and interests in the suit land. However, all such actions, shall be subject the decision of the writ petitions, wherein the issue regarding the surplus land is pending adjudication. RSA No. 1155 of 2004 (6) In view of the above, I do not find that any substantial question of law arises for consideration in the present Regular Second Appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 11.7.2008 ds