Regular Second Appeal No. 974 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 974 of 2008 Date of decision : September 06, 2010 Brij Mohan ....Appellant versus Dinesh Kumar and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ravish Bansal, Advocate for Mr. Ashok Singla, Advocate, for the appellant Mr. Rakesh Gupta, Advocate, for respondent no. 1 Mr. MS Chahal, Advocate, for respondent no. 3 None for respondent no. 2 L.N. Mittal, J. (Oral) Brij Mohan defendant no. 3 having lost in both the courts below is in second appeal. Dinesh Kumar respondent no. 1-plaintiff filed suit against respondents no. 2 and 3 (State of Haryana-defendant no. 1 and Assessing Authority-defendant no. 2) and appellant Brij Mohan defendant no. 3. Plaintiff's case is that he was working as servant with defendant no. 3-appellant since the year 1988 while the plaintiff was still minor. The plaintiff was being paid Rs 400/- per month as salary which was later on Regular Second Appeal No. 974 of 2008 -2- raised to Rs 800/- per month. Defendant no. 3 got registered Firm under the name and style of M/s Dinesh Trading Company depicting plaintiff to be sole proprietor thereof. However, business of the said Firm was carried on by defendant no. 3 himself. The plaintiff had no concern with any business transaction of the said Firm. Defendant no. 2 Assessing Authority, Haryana Rural Development Fund has assessed Rs 1,86,060.40 as arrears of Haryana Rural Development Fund payable by the said Firm. The plaintiff has disputed his liability to pay the said amount alleging that defendant no. 3 is liable to pay the same. Defendants no. 1 and 2 in their separate but similar written statements controverted the plaint allegations. It was pleaded that jurisdiction of civil court to try the suit is barred by section 158 of the Punjab Land Revenue Act, 1887 (in short, the Act). It was also pleaded that the suit amount is recoverable from the plaintiff being proprietor of M/s Dinesh Traders, Sirsa. It was alleged that the plaintiff was major when he applied for obtaining licence to carry on business as Commission Agent in agricultural produce in the name of the said Firm. Various other pleas were also raised. Respondent no. 3 in his written statement also controverted the plaint allegations and raised various pleas. Learned Civil Judge (Junior Division), Sirsa vide judgment and decree dated 28.9.2002 decreed the plaintiff suit declaring that plaintiff is not liable to pay the disputed amount and defendant no. 3 being real owner and proprietor of M/s Dinesh Trading Company is liable to pay the same. Defendants no. 1 and 2 were restrained from recovering the said Regular Second Appeal No. 974 of 2008 -3- amount from the plaintiff. First appeal preferred by defendant no. 3 stands dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 31.7.2007. Feeling aggrieved, defendant no. 3 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that jurisdiction of civil court to try the suit is barred by section 158(2)(XIV) of the Act which is reproduced herein under:- “(xiv) any claim connected with, or arising out of, the collection by the Government, or the enforcement by the Government of any process for the recovery of land- revenue, or any sum recoverable as an arrear of land-revenue.” On the other hand, learned counsel for the plaintiff-respondent no. 1 contended that defendant no. 3-appellant did not even raise the plea of bar of jurisdiction of civil court in the written statement. It was also contended that plaintiff in the suit did not challenge the assessment of the disputed amount nor challenged the right of defendants no. 1 and 2 to recover the same but only challenge is as to from whom the amount is recoverable i.e. from the plaintiff or defendant no. 3 and jurisdiction of civil court to adjudicate upon this question is not barred by section 158(2)(XIV) of the Act. In support of this contention, reliance has been placed on a Division Bench of this Court in Union of India versus Firm Ralla Ram Raj Kumar and another, AIR 1954 Punjab 271. I have carefully considered the rival contentions. It is correct that defendant no. 3-appellant in his written statement did not specifically Regular Second Appeal No. 974 of 2008 -4- plead that jurisdiction of civil court to try the suit is barred. However, nevertheless being legal question, defendant no. 3 is at liberty to raise the same. Defendant no. 3 even raised the said question in the first appeal. However, on merits the objection cannot be sustained in view of direct Division Bench of this Court in the case of Firm Ralla Ram Raj Kumar and another (supra). In that case, income tax amount was recoverable as arrears of land revenue. The dispute was similar as to from whom the said amount was to be recovered. It was held that jurisdiction of civil court to adjudicate upon this question is not barred by section 158(2)(XIV) of the Act. It was observed that jurisdiction of civil court is barred in the case of suit instituted by the defaulter and not by stranger or third person. If third person challenges liability to pay the amount then jurisdiction of the civil court is not barred. This direct judgment of Division Bench of this Court is fully applicable to the facts in the case in hand. In the instant case also dispute is whether the disputed amount is recoverable from plaintiff or defendant no. 3 and therefore, jurisdiction of civil court to try the suit and adjudicate upon this question is not barred by section 158(2)(XIV) of the Act It has come in evidence in the form of school certificate that date of birth of the plaintiff is 6.9.1974. Licence from Market Committee for running business in the name of the disputed Firm M/s Dinesh Trading Company was got on 7.4.1989. Age of the plaintiff at that time was, thus, 14 years and 7 months only. Consequently, plaintiff being minor was not even competent to obtain a licence or to run the business. Learned counsel for the appellant contended that in voters list, age of the plaintiff has been Regular Second Appeal No. 974 of 2008 -5- mentioned to be 22 years as on 1.1.1993 and therefore, age of the plaintiff as on 7.4.1989, the date of obtaining licence from Market Committee was well above 18 years. It was contended that the said voters list was prepared in October, 1992 whereas the suit was instituted on 3.12.1992. The contention raised by learned counsel for the appellant cannot be accepted. It has come in evidence that survey for preparing the voters list was conducted in October, 1992 but it has not come in evidence that final publication of the voters list was also done before the institution of the suit. On the contrary, in all probability final publication of the voters list must have been done some time in the year 1993 because age of the voter as on 1.1.1993 has been mentioned therein. Moreover, both the courts below have appreciated the evidence and have come to concurrent finding that the plaintiff was minor at the time of obtaining licence on 7.4.1989, his date of birth being 6.9.1974. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in the second appeal. It has also come in evidence in the form of testimony of President, Arhtiya Association that it was defendant no. 3-appellant who was running the business in the name of M/s Dinesh Trading Company. The said evidence has also been found to be reliable by the courts below. There is also other evidence led by the plaintiff to the same effect. In addition to the aforesaid, the plaintiff examined Manager of Rajasthan Bank as PW4. He has stated that amounts were transferred to the account of M/s Dinesh Traders from the account of Vikas Trading Company of which defendant no. 3 is admittedly proprietor. Defendant no. 3 also Regular Second Appeal No. 974 of 2008 -6- introduced the plaintiff for opening bank account in the name of M/s Dinesh Traders. Even amount of fixed deposit of wife of defendant no. 3 was deposited in the account of M/s Dinesh Traders in the bank. It is, thus, apparent that all the transactions of M/s Dinesh Traders were being carried out by defendant no. 3. There is, thus, ample evidence on record to conclude that in fact defendant no. 3 was carrying on business in the name of M/s Dinesh Traders/Dinesh Trading Company although plaintiff who was minor was depicted to be proprietor thereof. There is no illegality in the concurrent finding of both the courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is found to be bereft of any merit and is accordingly dismissed. ( L.N. Mittal ) September 06, 2010 Judge 'dalbir'