RSA No.3903 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3903 of 2007 Date of decision: 22.3.2010 Om Parkash ......Appellant(s) Versus State of Haryana and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Mahavir Sandhu, Advocate for the appellant. Mr. Kulvir Narwal, Additional Advocate General, Haryana with Mr. Sameer Pal Srow, District Collector, Ambala and Capt. Vinod Kumar, Tehsildar, Ambala. Mr. Arvind Singh, Advocate for respondent No.2. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby his suit for declaration to the effect that he was owner in possession of the suit land and mutation No.422 and the consequent changes in the revenue record in favour of defendant No.2 in respect of the suit land was illegal and not binding upon him with consequential relief of permanent injunction, was dismissed. As per the averments made in the suit, land in dispute was allotted to him by the Rehabilitation Department, State of Haryana, on 24.5.1983 and conveyance deed was executed on 5.7.1983 and possession was also delivered to him vide Rapat Roznamcha No.464 dated 5.7.1983. Respondent No.1 issued letters dated 9.7.1990 and 31.3.1994 and on the basis of the said letters mutation No.422 was sanctioned illegally in favour of respondent No.2 by respondent No.1 and ownership of the property was changed in the revenue record from the RSA No.3903 of 2007 2 name of the plaintiff to the name of defendant No.2. It was further averred that before effecting the change in the entries of revenue record, the plaintiff-appellant was never heard and thus, the mutation was ineffective qua his rights. Since the defendants on the basis of the aforesaid revenue entries were threatening to cut and remove the trees standing over the suit property to which they had no right, the present suit was filed. Upon notice, defendant No.2 in its written statement besides taking various preliminary objections, submitted that the land in question vests in the Gram Panchayat which is the owner in possession of the suit property. It was specifically stated that the plaintiff never remained in possession of the suit land and was not in possession thereof. The mutation was sanctioned legally. Rests of the averments were denied and prayer for dismissal of the suit was made. Replication, controverting the pleas taken in the written statement and reiterating the one taken in the plaint, was filed. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: “(1) Whether the plaintiff is owner in possession of the land in dispute? OPP (2) Whether the revenue entries are wrong and illegal? OPP (3) Whether the suit of the plaintiff is bad for non- joinder of the necessary parties? OPD (4) Whether the jurisdiction of the civil court is barred? OPD (5) Whether the plaintiff has not affixed proper court fees? OPD (6) Whether the defendants are entitled to special cost under section 35-A of the CPC? OPD RSA No.3903 of 2007 3 (7) Relief.” Issues No.1 to 3 were decided against the plaintiffs. Issue No.4 was decided in favour of the defendants. Issues No.5 and 6 were not pressed and consequently, the suit was dismissed. Feeling aggrieved with the impugned judgment and decree passed by the trial Court, the plaintiff filed an appeal before the Lower Appellate Court. Along with the appeal, the plaintiff also moved an application under Order 41 Rule 27 CPC for granting him permission to lead additional evidence. By way of the aforesaid application, the appellant intended to produce Daily Diary Report No.304 dated 23.3.1998, which reads as follows: “Copy of Rapat Rojnamcha for the year 1987-88 Halqa Sabka, Tehsil and District Ambala. 23rd March, 1988 i.e. Chait Samwat 1910. Order No.304: Today, as per order of S.O. (Sales) dated 23.3.1988, No.416/TA/23.3.1988, passed in case No.290/78/A,the land which was cancelled on 29.9.1987 from Om Parkash son of Kundan, the same has been restored in his favour after the entire payment thereof. The entry thereof has also been recorded in the Jamabandi.” However, the aforesaid application filed by the appellant for leading additional evidence was rejected by the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court observed as under: “10. The plaintiff has filed this suit on the plea that he was allotted the suit land in an open auction by the Rehabilitation Department on 24.5.1983. The defendants have placed on the file, copy of judgment of RSA No.3903 of 2007 4 the Hon'ble High Court Ex.D2. Vide this writ petition, Om Parkash appellant had challenged cancellation of his allotment by Rehabilitation Department. The plaintiff had sought quashing of order dated 3.6.1992 issued by defendant No.1. The said writ came to be dismissed. The prayer for quashing the cancellation of allotment was declined and observation was also made by the Hon'ble High Court that prior to the filing of the said writ petition, the plaintiff had also filed a suit, which was withdrawn by him. The order passed by the Hon'ble High Court is reproduced as under:- “The petitioner purchased the evacuee land in Auction which was held on 3rd, May 1983. The Land was mutated in favour of the Custodian. Vide mutation No.277 on 2nd May, 1983 and the Auction was conducted the very next day without complying with the mandatory provisions of 15 days' notice. The Joint Secretary Rehabilitation)-cum-Settlement Commissioner Haryana while dealing with the case of the petitioner with regard to the cancellation of sale in his favour recorded firm finding of fact that no notice was given to the prospective bidders nor the same was possible as the auction was held on 3rd May, 1983. The revenue Patwari of the area made no entry with regard to the proclamation of auction that was to be held on 3rd May, 1983. He, rather, admitted that he was forced to make a wrong report regarding proclamation on the back of Form S-XII. Further, it was found as a fact that the bid- sheet revealed that all the bids were collusive as the RSA No.3903 of 2007 5 same group of 6-7 bidder participated in the auction, out of which the petitioners were successful. Without, in any way, endeavouring to challenge the facts as noticed above, learned counsel appearing for the petitioner seeks setting aside of the order passed by the Settlement Commissioner, Haryana on the solitary ground that the sale, that was confirmed in favour of the petitioner, could not be set aside after a time lag of nearly ten years i.e. 1992 in a reference which was made after six years. We find no substance in the aforesaid contention as it is made out from the impugned order and is not disputed by the learned counsel for the petitioner that the petitioner filed a civil suit and obtained a stay from the civil court. Against the cancellation of auction and ultimately withdrew the suit on 8th December, 1991. Dismiss.” x x x x x x x x x x x x x x x x x 11. Not only the plaintiff concealed the fact of having filed writ petition, the plaintiff has also concealed that prior to that, a civil suit had also been filed, which was got dismissed as withdrawn by him. Therefore, the present litigation is an example of mis-use of process of law in initiating unwarranted litigation. The plaintiff though, was required under the rules to mention earlier litigation, which fact he concealed. Therefore, once the plaintiff has availed the remedy by approaching the Hon'ble High Court, he could not have approached the civil court by way of present civil suit. Therefore, learned RSA No.3903 of 2007 6 trial Court rightly decided issues Nos.1 and 2 against the plaintiff. Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the appellant by leading cogent evidence on record has proved that he is owner in possession of the land in dispute which he had purchased from the Rehabilitation Department in a restricted auction. The respondent- Gram Panchayat cannot claim the ownership and possessory right over the land in dispute on the basis of the mutation in question as it is settled proposition of law that mutation does not confer title. Moreover, mutation cannot be ordered to be sanctioned on the basis of Government instructions and the same cannot form basis for making a change in the revenue record. However, the material evidence on record and the vital aspects of the matter have been totally overlooked by the Courts below. Learned counsel for the appellant has also raised a grievance with regard to rejection of his application by the Lower Appellate Court for adducing additional evidence in order to show that the cancellation order of allotment earlier passed by the Department was later on restored vide aforesaid report and the aforesaid rejection of the application has caused grave and manifest injustice to the appellant. On the basis of the aforesaid arguments, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the land, which was duly allotted and confirmed by the Rehabilitation Department to the appellant-plaintiff under restricted auction and a conveyance deed thereof was also got executed between the parties could be set aside on the basis of RSA No.3903 of 2007 7 the mutation which has been sanctioned on the dint of Government letters? (ii) Whether the Government Letter could be form basis for making a change in the revenue record, although as per the settled proposition of law, the mutation does not confer the title and change in revenue record should have been made on the basis of some independent evidence and the revenue record of rights i.e. Jamabandi showing change of ownership on the basis of Government Letter is, thus, liable to be set aside and quashed? (iii) Whether once a person has been recorded as owner in possession of the land in the revenue record of rights i.e the jamabandi, the said entry can be changed or altered on the basis of the letter of the Government by the revenue officials and as per the settled proposition of law only the Civil Court is competent to change the entry reflected in the revenue record on the appraisal of the evidence led by the respective parties in the suit for declaration based upon the title of the property. Therefore, the impugned judgments and decrees are liable to be set aside? (iv) Whether the sale made by the Rehabilitation Department in favour of any person can be cancelled or set aside on the anvil of the Government letter by the revenue official without affording any opportunity of hearing to him and, thus, violates the rule of natural justice and the doctrine of Audi Alteram Partem? (v) Whether the land, which has been allotted by the RSA No.3903 of 2007 8 Rehabilitation Department after the commencement of V.C.L Act, 1961 i.e. w.e.f. 4.5.1961 and prior to 9.7.1985 to any person, will not revest in the Gram Panchayat as defined under Section 2 (g) (5) (ii-a) because under the aforesaid provisions, if during the said intervening period, the land was allotted to any one by the custodian department, the said Shamlat land was excluded from the operation of the definition of Shamlat Deh? (iv) Whether after a considerable gap of 11 years, the ownership of the land can be changed in the revenue record of rights without giving any notice and hearing to the owner concerned and that too on the basis of the Government letter? (vii) Whether the learned Civil Courts can travel beyond the pleadings of the parties and the Court is not competent to develop a new case suo moto beyond the pleadings of the parties? (viii) Whether without taking any plea in the written statement regarding res judicata and without framing any issue thereon, the suit can be decided on the basis of the alleged res judicata and if the plea is not taken by the defendants-respondents, it amounts to waiver of objection of res judicata in the eyes of law as in the present case? (ix) Whether the decision given by this Hon'ble Court in limine in the writ petition on the peculiar facts and circumstances of the case, amounts to res judicata on the fresh cause of action? RSA No.3903 of 2007 9 (x) Whether the change of the ownership of the suit land from the name of the appellant-plaintiff to the respondent Gram Panchayat by virtue of the impugned mutation issued on the basis of the Government letters gave a fresh cause of action to the appellant-plaintiff for filing the instant suit of declaration for setting aside of the said mutation? (xi) Whether the learned Lower Appellate Court has caused grave and manifest injustice to the appellant- plaintiff while rejecting his application filed U/O 41 Rule 27 of CPC for permission to lead additional evidence by way of which he intends to lead additional evidence to produce the copy of Daily Diary Report No.304 dated 23.3.1988 in order to show that the allotment earlier cancelled by the department was later on restored by the department vide aforesaid report? (xii) Whether the impugned judgments and decrees passed by the learned courts below are, thus, patently illegal, wrong, erroneous and as such liable to be set aside? (xiii) Whether grave and manifest injustice has been caused to the appellant-plaintiff?” On the other hand, learned counsel appearing on behalf of the respondents have submitted that the sale made in favour of the appellant was cancelled by the State vide order dated 3.6.1992. Challenging the aforesaid order, the appellant had filed CWP No.1663 of 1993 which was dismissed. On the basis of the aforesaid facts, learned counsel for the respondents argued that this appeal has no merit and the same is liable to be dismissed. RSA No.3903 of 2007 10 I have heard learned counsel for the parties and perused the impugned judgment and decree. Admittedly, the suit land is described in the revenue record as Shamlat-deh. It was, however, declared to be evacuee property. It was purchased by the appellant in an auction conducted by the Rehabilitation Department on 24.05.1983. A conveyance deed was executed on 05.07.1983. Rapat Roznamcha No.464 dated 05.07.1983 was recorded with respect to delivery of possession to the appellant. However, the sale deed was cancelled by the Joint Secretary(Rehabilitation)-cum-Settlement Commissioner, Haryana. The aforesaid order was challenged by the appellant in CWP No.1663 of 1993 which was dismissed. Thereafter, the appellant filed the present suit praying that the mutation sanctioned in favour of the respondents be declared null and void. The only contention before the Lower Appellate Court raised by the appellant was that prior to the dismissal of the writ petition, the Settlement Officer (Sales), Ambala passed order dated 23.3.1988 recording that the allotment of land which was cancelled on 29.9.1987, was restored in favour of the appellant after payment of the entire amount and a Rapat Roznamcha bearing No.304 of the year 1987-88 was recorded in this regard. It is a matter of record that the factum of the Rapat was not pleaded by the petitioner in CWP No.1663 of 1993 despite having this knowledge. While seeking permission to produce the Rapat Roznamcha by way of additional evidence, the only ground taking by the appellant was that he was not advised properly meaning thereby that the aforesaid order was very much to the knowledge of the appellant and in spite of that the same was not produced before the Court. Thus, no fault can be found with the order of the Lower Appellate Court rejecting his application for seeking additional evidence. Not only this, even before this Court, despite the fact that the RSA No.3903 of 2007 11 main basis of the appellant is the aforesaid Rapat Roznamcha yet no permission of this Court has been sought to place the aforesaid evidence as additional evidence. Not only this, the Lower Appellate Court has also found that while filing the suit, the appellant has concealed the factum of having filed the writ petition and prior to that also a civil suit was filed by him which was got dismissed as withdrawn. The plaintiff was required under the rules to make a mention of the earlier litigation but he has failed to do the same. Moreover, vide its judgment passed in CWP No.1663 of 1993, this Court has upheld the order of the Authorities cancelling the auction in favour of the appellant. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. March 22, 2010 (RAKESH KUMAR GARG) ps JUDGE