RSA NO. 2484 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO. 2484 OF 2007 DATE OF DECISION : DECEMBER 9, 2010 S. Palwinder Singh .... Appellant Versus Guru Granth Sahib .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Mr. Premjit Kalia, Advocate for the appellant. Mr. B. R. Mahajan, Advocate for the respondent. **** L. N. Mittal, J. (Oral) Defendant Palwinder Singh having remained unsuccessful in both the Courts below has filed the instant second appeal. Respondent-plaintiff Guru Granth Sahib filed suit against defendant-appellant for recovery of Rs.1,00,000/- as compensation for illegal use and occupation of 33 kanals 8 marlas land for two years alleging that the plaintiff being owner of 73 kanals 1 marla land including the suit land measuring 33 kanals 8 marlas, leased out the same (73 kanals 1 marla land) to defendant and his brother Swinder Singh for the year 1992-93 for Rs.17,000/-. After expiry of lease period , plaintiff asks defendant and his brother to hand over possession of the leased land to the plaintiff. Defendant's brother surrendered possession of the land which was in his exclusive possession, whereas plaintiff continued in possession with the suit land which was in his exclusive possession. The plaintiff, therefore, claimed compensation for use and occupation of the suit land for a period of two years from the defendant. RSA NO. 2484 OF 2007 -2- The defendant admitted that he and his brother had taken 73 kanals 1 marla land on lease from the plaintiff-owner in the year 1992 for Rs.17,000/-. It was also admitted that plaintiff's brother handed over possession of the land in his possession to the plaintiff. However defendant denied the other plaint allegations. It was alleged that lease period has not expired. The defendant had also moved application before Sub-Divisional Officer for deposit rent of one year for the entire land measuring 73 kanals 1 marla but the plaintiff refused to receive rent at the said rate. Various other pleas were also raised. Learned Additional Civil Judge Senior Division, Amritsar vide judgment and decree dated 13.08.2004 decreed the plaintiff suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Adhoc) Fast Track Court, Amritsar vide judgment and decree dated 23.02.2007. Feeling aggrieved, defendant has preferred instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that claim of plaintiff for compensation for use and occupation of the suit land is covered by Section 14 of the Punjab Tenancy Act, 1887 (in short, the Act) and, therefore, suit to recover the same fell within the exclusive jurisdiction of Revenue Court under Section 77(3(n) of the Act and jurisdiction of Civil Court to try the same is, therefore, barred by Section 77(3)(n) of the Act. Reliance in support of this contention has been placed on Division Bench judgment of this Court in Pritam Singh Vs. Mehal Singh, 1986(2) PLR 357. On the other hand learned counsel for plaintiff-respondent RSA NO. 2484 OF 2007 -3- contended that question relating to bar of jurisdiction of Civil Court was not pressed before the Trial Court and was also not argued before the lower appellate court and, therefore, the same cannot be raised as substantial question of law in the instant second appeal. Reliance in support of this question has been placed on two judgments of this court i.e. Dakshin Haryana Bijli Vitran Nigam Ltd & Anr. Vs. Amarjit Singh Chadha, 2010(2) Civil Court Cases 0429 and Munishi Ram Vs. Rajiv Kumar, 2010(2) PLR 311. Learned counsel for the appellant however, contended that the appellant in his grounds of appeal before the lower appellate court also alleged in paragraph 12 of the grounds of appeal that the issue No.3 relating to power of jurisdiction of Civil Court was hotly pressed before the trial court and the issue was also thus raised before the lower appellate court in the grounds of appeal. Per contra learned counsel for the respondent contended that the trial court has observed that issue No.3 relating to jurisdiction of Civil Court was not pressed and, therefore, said statement recorded by the Trial Court in the judgment could not be contradicted by alleging in grounds of first appeal that the issue has been pressed. Reliance in support of this contention has been placed on judgment of this Court in Hardevinder Singh and another Vs. Smt. Nirmal Kaur, 2010(3) RCR (Civil) 1. It was also contended that several points may be taken in a petition or appeal but the Judge deals with those points only, which are pressed before him. It often happens that at the time of arguments only some of these points are pressed and naturally a Judge deal only with the points which are pressed before him in the course of argument and to presume that the appellant gave up the other points. It was also submitted that if a point is RSA NO. 2484 OF 2007 -4- not mentioned in the judgment of a court the presumption is that the said point was never pressed before the learned Judge. If a litigant contends that he pressed the said point but was not dealt with in the judgment it is open to him to file an application before the same learned Judge who delivered the judgment. Observations to this effect has been made by Hon'ble Supreme Court in Mohd. Akram Ansari Vs. Chief Election Officer & Ors., 2008(1) RCR (Civil) 566 cited by learned counsel for the respondent. I have carefully considered rival contentions. It is specifically mentioned in judgment of the trial Court that issue No.3 relating to jurisdiction of Civil Court was not pressed. The said statement of fact recorded in the judgment has to be taken to be correct. The same has not been repeated because in the trial court the case was argued by Mr. T. R. Mattu, Advocate on behalf of defendant appellant. However, in first appeal the defendant appellant was represented by Mr. Raman Sharma Advocate who obviously could not have personal knowledge as to whether issue NO.3 was pressed before the trial court or not. No affidavit of the counsel who argued the case in the trial court on behalf of defendant-appellant was produced nor any application was moved in the trial court that aforesaid observation of the trial court is factually incorrect and in was pressed. As observed by Hon'ble Supreme Court in the case of Mohd. Akram Ansari (Supra) many points although raised in petition, pleadings or appeal are not actually pressed at the time of arguments. In the instant case there is specific observation by the trial court that issue No.3 relating to jurisdiction of Civil Court was not pressed. As regards raising of issue of jurisdiction of Civil Court in first appeal, it was of course mentioned in the grounds of first appeal however, RSA NO. 2484 OF 2007 -5- again this issue was not pressed even before the lower appellate court at the time of arguments as is manifest from the judgment of the lower appellate court. If this issue had been raised before the lower appellate court at the time of arguments it would have been dealt with by the lower appellate court, but perusal of the judgment of the lower appellate court reveals that no such argument was raised there. This conclusion is further fortified by the fact that defendant appellant had submitted written arguments in the lower appellate court and in the said written arguments issue relating to jurisdiction of Civil Court was not touched at all. It would, therefore, depict that the said issue was not raised before the lower appellate court at the time of arguments. Consequently the said issue now cannot be raised as a substantial question of law in the instant second appeal. In this conclusion I am supported by judgments of this Court in the case of Munishi Ram (supra) and Dakshin Haryana Bijli Vitran Nigam Ltd & Anr. Vs. Amarjit Singh Chadha (supra). There is another aspect of the matter as if the defendant has pressed the issue of jurisdiction of Civil Court before the trial court, the plaintiff would have got opportunity to file the necessary suit before the Revenue Court under Section 77(3)(n) of the Act. The suit in the Civil Court was instituted on 04.09.1997 and was decided by the trial court on 13.08.2004. Now, it will be too late in the day to direct the plaintiff to file suit in the Revenue Court by return of plaint from the Civil Court. Courts are meant to advance the ends of justice. The plaintiff respondent is entitled to compensation for use and occupation of the suit land by the plaintiff during the period in question. There has been no failure of justice by the decrees of the courts below, no prejudice has been caused to the defendant- RSA NO. 2484 OF 2007 -6- appellant. Consequently the question of jurisdiction of Civil Court now cannot be allowed to be raised as substantial question of law in the instant second appeal as it was not pressed before both the courts below. For the reasons aforesaid I find no merit in the instant second appeal, which is accordingly dismissed. (L. N. MITTAL) JUDGE December 9, 2010 'raj'