R. S. A. No. 1533 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1533 of 2011 Date of Decision : April 07, 2011 Mohinder Singh .... Appellant Vs. State of Haryana and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. L. N. Verma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Mohinder Singh – one of the legal representatives of plaintiff no.1, having failed in both the courts below, has filed the instant second appeal. Plaintiffs in the suit challenged order dated 28.02.1994 passed by Collector, Sirsa, as modified vide order dated 29.11.2000 thereby declaring suit land measuring 109 kanals 09 marlas to be surplus in the hands of Surinder Singh – big land owner (since deceased and represented by defendants no.4 to 6). Case of the plaintiffs is that Jarnail Singh – predecessor of the R. S. A. No. 1533 of 2011 2 plaintiffs was in cultivating possession of 269 kanals 04 marlas land including the suit land measuring 109 kanals 09 marlas as tenant since before the consolidation of holdings. Jarnail Singh died leaving behind four sons namely Sohan Singh – plaintiff no.1 (since deceased and represented by appellant and proforma respondents no.7 to 9), Karam Singh – plaintiff no.2 (proforma respondent no.10), Mohan Singh (since deceased and represented by plaintiffs no.3 and 4/proforma respondents no.11 and 12) and Joginder Singh (since deceased and represented by plaintiffs no.5 to 7 i.e. proforma respondents no.13 to 15). They continued as tenants in possession of the suit land. The suit land was allotted to Surinder Singh (predecessor of defendants no.4 to 6) in the year 1968 by Custodian Department, who became owner of the suit land. Surinder Singh died on 11.06.1982 and was inherited by defendants no.4 to 6. However, Jarnail Singh continued to cultivate the suit land as tenants. No part of the suit land was declared surplus either under the Punjab Security of Land Tenures Act, 1953 (in short – the Tenures Act) or under the Haryana Ceiling on Land Holdings Act, 1972 (in short – the Ceiling Act) in the hands of Surinder Singh during his life time or even in the hands of defendants no.4 to 6 till the suit land was transferred in favour of the plaintiffs by defendants no.4 to 6 vide Civil Court decree dated 16.12.1989 by way of exchange. Consequently, plaintiffs are owners in possession of the suit land, but the same has been declared as the surplus area in the hands of defendants no.4 R. S. A. No. 1533 of 2011 3 to 6 vide impugned order dated 28.02.1994 passed by defendant no.3 Collector, as modified vide order dated 29.11.2000. The said orders are null and void and without jurisdiction being in violation of the Tenures Act and rules framed therein and also in violation of principles of natural justice. No opportunity of hearing was given to the plaintiffs before passing of said order. Plaintiffs are bona fide transferees of suit land from defendants no.4 to 6. The plaintiffs had no knowledge of the pendency of surplus proceedings or the decision thereof. On inquiry, they had learnt that the suit land has not been declared surplus and no surplus area case was pending. Making these averments, the plaintiffs sought declaration that they are owners in possession of the suit land i.e. plaintiffs no.1 and 2 to the extent of 1/4th share each, plaintiffs no.3 and 4 to the extent of 1/4th share and plaintiffs no.5 to 7 to the extent of 1/4th share and the impugned order dated 28.02.1994 and 29.11.2000 are null and void etc. Permanent injunction was also claimed. Defendants no.4 to 6 admitted the claim of the plaintiffs. Defendants no.1 to 6 contested the suit and broadly denied the plaint allegations. It was pleaded that Surinder Singh, who was big land owner, died without filing the declaration under the Tenures Act. Accordingly, after his death, Tehsildar, Sirsa filled up the declaration and forwarded it to the prescribed Authority under Section 10 of the Ceiling Act. Prescribed Authority passed order dated 23.10.1988 under the surplus proceedings. R. S. A. No. 1533 of 2011 4 However, on appeal preferred by tenant Harbans Singh, said order dated 23.10.1988 was set aside vide appellate order dated 07.03.1990 and the case was remanded to Special Collector for fresh decision. Thereafter, suit land was declared surplus vide impugned order dated 28.02.1994. In appeal preferred by defendants no.4 to 6, Commissioner, vide order dated 13.01.1995, remanded the case to Special Collector, who again decided the case vide order dated 28.11.1996. However, on account of some ambiguity found in the list of area supplied by tenant, Special Collector issued revised Form `F' vide order dated 29.11.2000. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sirsa, vide judgment and decree dated 15.06.2009, dismissed the plaintiffs' suit. First appeal preferred by Mohinder Singh – one of the legal representatives of plaintiff no.1 has been dismissed by learned Additional District Judge, Fast Track Court, Sirsa, vide judgment and decree dated 15.11.2010. Feeling aggrieved, Mohinder Singh has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant very emphatically contended that plaintiffs were not granted opportunity of hearing before passing of the impugned orders in surplus proceedings and therefore, the said orders are null and void. It was also pointed out that in similar appeal bearing R. S. A. No. 1143 of 2010 titled Dalbir Kaur and others vs. State of Haryana R. S. A. No. 1533 of 2011 5 and others between the same parties, relating to the same impugned surplus orders, notice of motion has been issued by this Court and the instant case is similar to R. S. A. No. 1143 of 2010 on facts. I have carefully considered the aforesaid contentions, but find no merit therein. It has come in evidence that initially, order dated 23.10.1988 (Ex.D-1) was passed in surplus proceedings case. Case of the plaintiffs is that they became owners of the suit land vide decree dated 16.12.1989 by way of exchange. Consequently, the plaintiffs came into picture long after surplus proceedings had been initiated and in fact, initial order dated 23.10.1988 was passed in the surplus proceedings. Appeal preferred by one Harbans Singh – tenant was pending, which was decided on 07.03.1990. The plaintiffs allegedly became owners of the suit land on 16.12.1989 i.e. during pendency of surplus proceedings. Consequently, no fresh notice or opportunity of hearing was required to be given to the plaintiffs. On the other hand, in R. S. A. No. 1143 of 2010, plaintiffs had purchased the suit land involved in that case vide sale deed dated 02.06.1983 and their names had also appeared in the revenue record, but they were not afforded opportunity of hearing before passing of impugned orders in surplus proceedings. Thus, facts of R. S. A. No. 1143 of 2010 are completely distinguishable from the facts of the case in hand. The two cases are not on parity on facts. The contention raised by counsel for the appellant based R. S. A. No. 1533 of 2011 6 on parity with R. S. A. No. 1143 of 2010 is thus completely misleading and untenable. Facts of the two cases are completely and materially different. In fact, even the plaintiffs were well aware of the distinction in the facts of the two cases inasmuch as they filed two separate suits between the same parties regarding same orders passed in surplus proceedings, knowing the distinction in the facts of the two cases. In R. S. A. No. 1143 of 2010, the contention was that names of plaintiffs had appeared in the revenue record pursuant to transfer of the suit land in their favour, but still they were not granted opportunity of hearing before declaring the suit land as surplus. This contention was based on the fact that plaintiffs had purchased the land of that suit vide sale deed dated 02.06.1983 and their names had also appeared in the revenue record apparently before the surplus proceedings, whereas in the instant case, the plaintiffs claimed ownership of the land involved in this case on the basis of decree dated 16.12.1989 passed during the pendency of the surplus proceedings, wherein initial order dated 23.10.1988 had also been passed against which appeal preferred by one Harbans Singh – tenant was pending. Keeping in view this material distinction in the facts of the two cases, the plaintiffs filed two separate suits. If the two cases had been on same or similar facts, plaintiffs would have filed a single suit and there was no necessity of filing two suits. For the reasons aforesaid, I find no merit in the instant second appeal. The impugned surplus orders are not vitiated in any manner qua the R. S. A. No. 1533 of 2011 7 suit land. The plaintiffs had no right to be heard in the surplus proceedings being transferees during the pendency of the surplus proceedings. Impugned judgments of the courts below, therefore, do not suffer from any illegality or perversity and do not warrant any interference in second appeal. The appeal is completely frivolous and meritless. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. April 07, 2011 ( L. N. MITTAL ) monika JUDGE