IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3633 of 2005 Date of Decision: 03.02.2009 M/S Gupta Hotel, Ballabgarh, Proprietor Neki Ram Gupta. ....... Appellant through Shri S.C.Kapoor, Senior Advocate with Shri Harminderjit Singh, Advocate. Versus The State of Haryana and others. ....... Respondent nos. 1 & 2 through Shri O.P.Sharma, Addl.Advocate General, Haryana. Respodent nos. 3 to 10 through Shri Arun Jain, Senior Advocate with Shri Adarsh Jain, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This appeal is directed against the judgments and decrees dated 29.1.2004 and 2.5.2005 passed respectively by the Civil Judge (Junior Division), Faridabad (hereinafter described as `the trial Court') and the Additional District Judge, Faridabad (referred to hereinafter as `the First Appellate Court') vide which the suit and the appeal of the plaintiff- appellant had been dismissed. R.S.A.No.3633 of 2005 -2- .... Initially,the appellant filed a suit against the State of Haryana and Sub Division,Collector -cum-Collector, Agrarian, Ballabagarh, for declaration and permanent injunction and in the alternative, also prayed for mandatory injunction. It was pleaded by the appellant that he was running a hotel in the name and style of Gupta Hotel since 1961 and that the area on which the hotel was situated, was taken on teh-bazari, but later on, vide resolution no. 13 dated 14.5.1971, the Municipal Committee, Ballabgarh, gave this land on Pattanama for nine years as per registered vasika no.2658 dated 25.8.1971. Vide resolution no.9 dated 25.10.1971, the Municipal Committee, Ballabgarh gave some more property on Patta for nine years to the appellant, but subsequently, letter no.FCA/B/ADB/CA/89/17 dated 5.1.1993 was issued in his favour on the basis of which he deposited a sum of Rs.44,983.35 as sale price of the property. It was then pleaded that he had become owner of the property in dispute after having purchased the same from Faridabad Complex Administration/ Municipal Committee, Faridabad. The appellant had averred that Col. Sir Harender Singh Barar, Ex-Holder, Faridkot through Balbir Singh, General Power of Attorney, filed suit no.478 of 13.10.1983 against the State of Haryana which was decreed in favour of Balbir Singh/ Harender Singh on 5.11.1984. In the said suit, a site plan had been filed and 1 kanal 3 marlas of land was shown as owned and possessed by by Col.Harender Singh. The hotel of the appellant was also shown in that site plan. It was further averred that Col.Harender Singh was a big land owner and was having surplus land under the Punjab Security of Land R.S.A.No.3633 of 2005 -3- .... Tenure Act,1953 and the Special Collector, Haryana, Chandigarh passed an order dated 1.5.1979 to that effect. The appellant had stated that in the year 1972, the Haryana Ceiling on Land Holdings Act,1972 came into force pursuant to which Col.Harender Singh had filed a declaration in the year 1976 regarding his holdings and failed to declare the property, i.e., khasra no.158 in his declaration form and the Special Collector decided the permissible area and the surplus area and further decided that if any more area is found with Col.Harender Singh, the same shall go to the surplus pool. Col.Harender Singh, after his suit was decreed on 5.11.1984, sold 1 kanal 15 marlas land falling in khasra no.158 to eight persons in the year 1989. A legal notice was served upon the State of Haryana and the Collector, Agrarian, Ballabgarh. Thereupon, the Agrarian records were checked and it was found that Col.Harender Singh had fraudulently sold the land comprised in khasra no. 158 as the same fell in the surplus pool. Accordingly, the Collector,Agrarian issued notice to eight purchasers and Smt.Raj Kumari Amrit Kaur, trustee of Col. Harender Singh and an order was passed on 14.7.1998 and the land was included in the surplus pool. Since the appellant was in possession of the land in dispute, he was displaced illegally on 17.12.1998. It was pleaded that the property had been purchased by the appellant from the Faridabad Complex Administration/ Municipal Committee, Faridabad with the approval of the State Government. Accordingly, he filed objections with the Collector, but the same were not considered at all and it was averred that due to this R.S.A.No.3633 of 2005 -4- .... reason, he was entitled to possession of the property situated at Uncha Gaon Bazar, Ballabgarh. It was also pleaded that injunction be granted to the appellant as he was in possession and the defendants be restrained from interfering in his possession. The appellant, therefore, made the following prayers in the suit:- “It is, therefore, prayed that a Decree of Declaration to the effect that the plaintiff is owner and in possession of the property mentioned in para no. 1 to 4 of the plaint and shown in the site plan in red colour situated at Uncha Gaon Bazar, Ballabgarh and fully detailed and described in the site plan; A decree of permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the suit property and from dispossessing the plaintiff from the suit property detailed and described in para no. 1 to 4 of the plaint which the plaintiff purchased from FCA/ MCF, Faridabad, with the orders of the Haryana Govt.; That in the alternative if the defendants illegally wrongly forcibly demolish the properties of the plaintiff and take forcible possession a decree for Mandatory Injunction be passed directing the defendants to hand-over pleaceful possession of the properties in the same condition in which the properties exist prior to to demolition and also losses and damages due to illegal and wrong acts of demolition and taking forcible possession for which the defendants have no right; R.S.A.No.3633 of 2005 -5- .... That it be declared that the surplus land of the defendants is 1 K 3 marlas as per ExP4 proved by Sh. Balbir Singh, GPA of Col.Sir Harrender Singh, in case no. 478 of 1983 decided on 13/11/84; and Any other relief which this Hon'ble Court may deem fit and proper may also be awarded.” Subsequently, the plaint was amended and the eight purchasers were also impleaded as defendants. The suit was contested by the defendants-respondents, who stated that the property in dispute was demarcated in the presence of the appellant and it was found that it formed part of khasra no.158/2 and since it belonged to the surplus pool and its possession was taken in accordance with law as per the orders dated 14.7.1998 of the Collector and that the Municipal Committee, Ballabgarh had no concern with the same. It was pleaded that the suit property could neither be given on Teh-bazari nor could the same be leased out to the appellant. It was further pleaded that the land measuring 1 kanal 15 marlas was part of khasra no.158 and the total area of this khasra no. is 17 kanals 16 marlas and this entire khasra had been declared surplus in the hands of Col.Harender Singh. Respondent nos. 3 to 10, in their separate written statement, averred that the suit was not maintainable and that the Civil Court had no jurisdiction. It was pleaded that the appellant was doing the business of sweet-meal seller and the State of Haryana was the owner in possession of khasra no.158/2 which had been declared surplus. R.S.A.No.3633 of 2005 -6- .... On the basis of the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is absolute owner in possession of the suit property mentioned in para No. 2 to 4 of the plaint?OPP 2. Whether the plaintiff is entitled for a decree for possession by way of mandatory injunction qua the suit property?OPP 3. Whether the plaintiff is entitled for injunction as prayed for?OPP 4. Whether the plaintiff has purchased the suit property from erstwhile Municipal Committee, Ballabgarh as alleged?OPP 5. Whether the defendant No.2 broken the locks of establishment and looted the cash,material of the plaintiff establishment forcibly and took possession of the establishment illegally, wrongly, without due process of law and demolished the establishment?OPP 6. Whether the State of Haryana, through Collector, Faridabad failed to sign the written statement and its effect?OPP 7. Whether the defendant No.2 demolished the establishment of the plaintiff with malafide intentions to snatch the power of civil court?OPP 8. Whether the defendants taking contradictory plea and its effect?OPP 9. Whether the judgment and decree in suit No.478 of 1983 decided on 5.11.84 ambiguous regarding suit property R.S.A.No.3633 of 2005 -7- .... therein, if so to what effect?OPP 10. Whether the defendants No. 3 to 10 included about one kanal of land of khasra No.118 of Abadi Deh Ballabgarh in the four sale deeds executed by Raja Harinder Singh in favour of defendants No. 3 to 10 and one Manoj Kumar malafidely and its effect?OPP 11. Whether the defendant No.2 appointed Shri Badri Parshad Advocate as a private knowing fully well that the property establishment of the plaintiff does not fall in surplus pool and its effects?OPP 12. Whether the plaintiff is entitled for the relief claimed in the suit i.e. for mandatory injunction which the plaintiff purchased from MCF for consideration?OPP 13.Whether the plaintiff has no locus standi to file the suit as pleaded in P.O. No.1 of the written statement of defendants Nos. 3 to 10?OPD 14. Whether the suit is not maintainable?OPD 15. Whether the plaintiff has no cause of action to file the suit?OPD 16. Whether the suit has not been properly instituted against Haryana State as pleaded in P.O.No.4 of the written statement by defendants No. 3 to 10?OPD 17. Whether the suit is bad for non-compliance of provisions of Section 80 CPC before filing the suit against the defendants R.S.A.No.3633 of 2005 -8- .... No.1 to 2?OPD 18. Whether the plaintiff is estopped from filing the suit as alleged?OPD 19. Whether the civil suit (sic. Court) has no jurisdiction to entertain and try the suit?OPD 20. Whether the suit is not properly valued for purposes of Court fee and jurisdiction?OPD 21. Whether the suit of the plaintiff is false, frivolous, bogus and mala fide as alleged?OPD 22. Relief. The appellant examined six witnesses in support of his case. Thereafter, respondent nos. 3 to 10 filed an application under Order 7 Rule 11 of the C.P.C. and on 8.1.2004, on the joint request of the counsel for the parties, the following preliminary issue was framed:- 1. Whether the Civil Court has got no jurisdiction totry & decide the present suit as the land in dispute is a surplus land declared vide order dated 14.7.1998 by the Collector, Aggrarian, Faridabad?OPD 2. Relief. The trial Court thereafter proceeded to determine the aforementioned preliminary issue and came to the conclusion that the Civil Court had no jurisdiction to try the suit and accordingly dismissed the same. An appeal was preferred by the appellant and before the First Appellate Court, the claim regarding jurisdiction on the ground that surplus R.S.A.No.3633 of 2005 -9- .... proceedings were not in the domain of the Civil Court, was given up. A statement was made by the appellant on 20.4.2005 that order dated 14.7.1998 which was passed by the Collector, Agrarian,declaring khasrano.158 to be surplus in the hands of Col. Harender Singh had been set aside by the Commissioner, Gurgaon and accordingly, he gave up the pleas with regard to the declaring the suit land as surplus area on the basis of the said order. Thereafter, the First Appellate Court, while resorting to the instructions contained in Para-9, Chapter IC, Volume-I of the High Court Rules and Orders, observed that the plaint does not disclose the location and demarcation of the suit property vis-a-vis the adjacent properties and consequently, dismissed the suit on account of the short-comings in the plaint by exercising its power under Order 7 Rule 11(a) of the C.P.C. Feeling aggrieved by the judgments of the Courts below, the appellant has filed this Regular Second Appeal. Learned counsel for the appellant contended that the First Appellate Court has completely misconstrued the provisions of Chapter-I of Volume-I of the High Court Rules and Orders. The trial Court had decided the matter on the issue of jurisdiction and once that question was given up before the First Appellate Court, it ought to have remanded the case back to the trial Court for deciding the remaining issues, but it could not have resorted to the provisions of Order 7 Rule 11(a) of the C.P.C. to dismiss the suit at the threshold and that too on the premise that the suit property had not been identified. It has further been contended that the matter should have been remanded back so as to enable the trial Court to complete the R.S.A.No.3633 of 2005 -10- .... evidence and in case, the trial Court came to the conclusion that the property could not be identified, the passing of decree could have been declined against the appellant, but the matter could not be dismissed at the threshold. Reliance was placed on Salem Adovcate Bar Association, Tamil Nadhu Versus Union of India, AIR 2003 S.C. 189, wherein their Lordships of the Supreme Court in paragraph 16 of the judgment observed as under:- “ 16. Our attention has been drawn to Order 7, Rule 11 to which clauses (e) and (f) have been added which enable the Court to reject the plaint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects, and in the event of the same not being done, the Court will have the liberty or the right to reject the plaint.” On the other hand, learned counsel for the respondents contended that there was no bar in the rejection of the plaint and since the property had not been identified, the appellant was not entitled to a decree. Reliance was placed on Chutahru Bhagat and others Versus Hialal Sah and others, AIR (37) 1950 Patna 306; Heirs of Charanpai Reang, Smt.Samabati Riang and others Versus Sri Dinabandhu Das and others, AIR 1964 Tripura 36; John Sylem Versus Chanthanamurthui Pillai (Dead) & Ors., 2004(1) R.S.A.No.3633 of 2005 -11- .... Civil Court Cases 144 (Madras) and Subhaga & Ors. Versus Shobha & Ors., 2006(3) Civil Court Cases 289 (S.C.). I have thoughtfully considered the rival contentions and have carefully perused the whole record. The provisions of Paragraph 9 of Part-C of Chapter-I of Volume-I of the High Court Rules and Orders, reads as under:- “9. Land Suits.- If the plaint relates to agricultural land and the plaintiff is illiterate, it should be scrutinized with special care, according to the following directions:- (i)The Presiding Officer shall ascertain by careful examination of the plaintiff or his agent, whether the prayer in the plaint corresponds in all particulars with the exact relief which the plaintiff orally describes himself as seeking. If the oral statements of the plaintiff or his agent are at variance with the written description of his claim, the plaint shall, in his or his agent's presence,be returned for amendment, and no amended plaint should be accepted until the Court is satisfied that it correctly expresses the claim which the plaintiff desires to establish. (ii) Every such plaint shall be accompanied by a statement, in the prescribed form setting forth the particulars relating thereto recorded in the settlement record and in the last Jamabandi. This statement shall be verified by a signature of the Patwari of the Circle in which the land concerned is R.S.A.No.3633 of 2005 -12- .... situate. Where by reason of partition, river acting or other cause, the entries in the settlement record and in the last Jamabandi do not accord, a brief explanation of the reason should be given in the column of remarks. Where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific plot claimed, or in relation to which the decree is to be made, and so much of the fields, adjoining it also drawn to scale, as maybe sufficient to facilitate identification. The specific plot and adjoining fields shall be numbered in accordance with the statement and the map shall be certified as correct by the Patwari or other person who prepared it. Where, however, the suit is for the whole of one or more khasra numbers as shown in the Settlement map, or a share in such numbers, and not for a specific portion thereof,no map will be required unless it is necessary for other reasons to show the boundaries of such khasra numbers.” A reading of the above reproduced provisions of law reveals that it is only in the case of an illiterate person and the property in dispute being agricultural land that such rule can be resorted to. But, even this rule does not lay down that the plaint deserves to be rejected at the threshold if the property had not been identified in a suit which has been filed by an illiterate person and which relates to agricultural land. The provision aforesaid is apparently to safeguard the interest of an illiterate person qua R.S.A.No.3633 of 2005 -13- .... the suit property, which is agricultural and can be confusing to an unlettered man; and if the Court rejects the plaint to defeat the suit and the prayer made therein altogether, it would be doing something which would be at a cross purpose with the provision of the rule which, in any case, cannot be said to be mandatory. In the instant case, a perusal of the plaint shows that it has neither been filed by an illiterate person nor is the suit property agricultural land. In this view of the matter, the observations of the First Appellate Court are totally perverse and deserves to be set aside. That apart, there is no objection taken by the respondents in the written statement regarding the identity of the land in dispute. Not a word has been said that the property has not been properly identified. In any eventuality, this was subject to further proceedings before the trial Court, who could have either asked the appellant to supply the identity at the threshold in the wake of an objection raised by the respondents, if at all, or to have determined the suit on the basis of the evidence and if it came to the conclusion that the property was not properly identified, it could have declined to pass a decree in his favour, but to say that the suit itself was defective and to dismiss it at the threshold by resorting to the provisions of Order 7 Rule 11(a) of the C.P.C. by relying on Paragraph 9 of Chapter-I, Part-C of Volume-I of the High Court Rules and Orders, would be totally arbitrary. Besides, it has been noticed from the record that some evidence had already been recorded and the trial had commenced. The First Appellate R.S.A.No.3633 of 2005 -14- .... Court has failed to take all these factors into consideration and this has resulted in perversity which deserves to be rectified. The Apex Court in Govindaraju Versus Mariamman, (2005) 2 S.C.C. 500 and Harjeet Singh and another Versus Amrik Singh and another, (2005) 12 S.C.C. 270, has held that in case the findings recorded by the Courts below are perverse, then, in such an eventuality, the same can be interfered with in the Regular Second Appeal. The substantial questions of law that arise in this appeal are as under:- 1. Whether in the facts and circumstances of the case,non- compliance of Rule 3 of Order 7 of the Code of Civil Procedure or the provisions of Para 9 Chapter IC Volume 1 of the High Court Rules and Orders is a valid ground for rejection of the plaint? 2. Whether in the facts and circumstances of the case, a plaint which contains sufficient numbers to identify the suit property, can be rejected on the ground of not filing a site plan? 3. Whether in the facts and circumstances of the case, provisions of Para 9 Chapter IC Volume 1 of the High Court Rules and Orders and Rule 3 of Order 7 of the C.P.C. are mandatory? 4. Whether in the facts and circumstances of the case, the order passed by the appellate Court is legally unsustainable? R.S.A.No.3633 of 2005 -15- .... The above questions of law stand answered as above. In the result, the appeal is allowed and impugned judgments and decrees are set aside and the case is remanded back to the trial Court for decision on merits in accordance with law. February 03,2009 ( Mahesh Grover ) “SCM” Judge