RSA No.866 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.866 of 1993 Date of Decision: 28.04.2009 Zile Singh ..Appellant Vs. Smt.Bira Bai & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ravi Sharma, Advocate, for the appellant. Mr.Ashok Verma, Advocate, for respondent Nos. 1 to 3. --- 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 Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 5.2.1993 passed by learned lower appellate court vide which RSA No.866 of 1993 2 appeal filed by defendant/respondent No.1 against the judgment and decree passed by the learned trial court was accepted and the suit filed by the plaintiff/appellant was ordered to be dismissed. Plaintiff/appellant filed a suit on the pleadings that the plaintiff was owner of the property in dispute measuring 28 kanals 10 marlas in pursuance to the two sale deeds dated 25.5.1973 which were duly registered with Sub-Registrar, Hansi. Another 27 kanals 12 marlas of land was purchased by Ram Sarup, Daya Nand, Suraj Bhan, Sajjan Singh sons of Amar Singh from its owner in possession of Jiwand Singh, defendant No.4, now deceased. By way of sale deed Smt. Chandro wife of Mange Ram son of Sahib Ram purchased 20 kanals 10 marlas from said Jiwand Singh for valuable consideration. The land in dispute was originally owned by Ram Ditta Mal whose surplus land measuring 48 kanals 2 marlas plus 15 kanals 4 marlas was purchased by tenant Jiwand Singh, defendant No.4. In pursuance to the purchase, mutation No.2426 dated 27.7.1973 was sanctioned in favour of Ram Sarup etc, whereas mutation No.2428 was sanctioned in favour of Ram Sarup etc by Assistant Collector IInd Grade, Hansi. Subsequently, Smt. Chandro wife of Mange Ram exchanged her above said 20 kanals 10 marlas of land with Zile Singh plaintiff, Murti, Sajjani and Roshni and mutation No.2427 was sanctioned in this regard. Similarly, Ram Sarup etc. also exchanged their 20 kanals 12 marlas of land with Zile Singh etc. and mutation No.2429 dated 27.7.1973 was sanctioned. Thus, Zile Singh claimed that he became owner of the land got in RSA No.866 of 1993 3 exchange measuring 48 kanasl 2 marlas. Subsequently, Smt. Chandro, Sajjani, Murti and Roshni gave their land to Zile Singh by way of family settlement vide decree dated 3.12.1979 and thus, the plaintiff was then sole owner of this land. He further claimed to be in cultivating possession over this land as owner. Defendants No.1 to 3 i.e. the successors-in-interest of true owner filed a suit for recovery of batai in the court of Assistant Collector First Grade, Hansi and during the pendency thereof the plaintiff/appellant filed a suit for declaration which stood decreed. During the pendency of the suit Smt.Bira Bai widow of Ram Ditta Mal and Jiwand Singh, defendant No.4 died. Application for impleading the legal representatives of Jiwand Singh was dismissed vide order dated 19.7.1988, whereas legal representatives of Bira Bai were already on record. On notice, defendants No.1 to 3 contested the suit by raising preliminary objections including objection that the plaintiff has no cause of action. The jurisdiction of the court to entertain and try the suit was challenged, the suit was stated to be bad for non-joinder and mis-joinder of parties. It was also pleaded that after the death of Ram Ditta Mal original owner of the land defendants No.1 to 3 became small land owners and thus, the suit land falls within the permissible area of the defendants. It was also pleaded that the plaintiff/appellant had not come to the court with clean hands. On merits, it was contended that Jiwand Singh had never RSA No.866 of 1993 4 become owner of the suit land. He was said to be the tenant under Ram Ditta Mal predecessor-in-interest of defendants No.1 to 3 and after the death of Ram Ditta Mal on 23.11.1982 defendants No.1 to 3 became owners of the suit land, whereas defendant No.4 was the tenant at Will. It was also the case of the defendants that Jiwand Singh could not pass valid title in favour of Ram Sarup and Smt. Chandro etc. and that the mutation sanctioned in favour of Ram Ditta Mal etc., were illegal and did not pass any title in their favour. It was also pleaded that Ram Ditta Mal was not made party to the collusive suit decreed on 3.12.1979 and therefore, it has no effect on their right etc. Order dated 19.5.1980 was said to be quite legal and locus standi of the plaintiff to challenge was also questioned. Against this order Jiwand Singh filed an appeal which was dismissed on 1912.1981 by the learned Collector, Hisar and that the order Ex.D.3 has been passed by the Assistant Collector following the directions given by the learned Financial Commissioner dated 11.7.1979. The defendant No.4 supported the case of the plaintiff. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is the owner in possession of the suit land as alleged in the plaint? OPP 2. Whether the order dated passed by Shri H.L.Gupta, A.C.Ist Grade Hansi in case No.153-Q of 19.5.1980 is illegal, null and void and not binding on the rights of the plaintiff and is liable to be set aside? OPP RSA No.866 of 1993 5 3. Whether mutation No.2902 dated 7.6.1980 and 2975 dated 21.1.1983 are null and void and liable to be set aside as alleged in the plaint? OPP 4. Whether the plaintiff has no locus standi to file the suit? OPD 5. Whether the plaintiff has no cause of action to file the suit? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD 8. Whether the civil court has no jurisdiction to try the suit? OPD 9. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 10. Whether the suit land is permissible area of the defendant and the defendants are small land owners, if so, its effect? OPD 11. Whether the plaintiff has not come to the court with clean hand? If so, its effect? OPD 12. Whether the suit is not within the limitation period? OPD 13. Whether the plaint has not been properly verified? If so, its effect? OPD 14. Whether the defendant No.4 is tenant on the suit land RSA No.866 of 1993 6 under defendants No.1 to 3? If so, its effect? OPD 15. Relief. Learned trial court took up issues No.2 and 3 first. It was held by the learned trial court that main challenge in the suit was to order dated 19.5.1980 Ex.D.3 passed by the Assistant Collector First Grade which was claimed to be without jurisdiction as the Assistant Collector First Grade had no power to pass an order which could decide the title of suit property. Learned trial court observed that a perusal of remand order Ex.D.2 issued by the Financial Commissioner on 11.7.1979 would show that the latter had directed the Assistant Collector First Grade to immediately proceed to decide the surplus area case of the landowners and thereafter to dispose of the purchase application of the petitioner/tenant. However, for the reasons best known to Assistant Collector First Grade he proceeded first to decide the application filed under section 144 of the Code of Civil Procedure (for short the Code) and thereafter ordering the change of ownership of the suit land in favour of Ram Ditta Mal instead of complying with the directions of the Financial Commissioner as given in Ex.D.2. Learned trial court, therefore, held that the order of Financial Commissioner had not been complied with. The learned court further observed that the question of title was to be adjudicated upon by the civil court and therefore, by way of impugned order question of title could not be decided. Thus, the learned trial court was pleased to hold that the order dated 19.5.1980 Ex.DB was illegal, null and void and not binding on the rights of the plaintiff and consequently, set RSA No.866 of 1993 7 aside the same. Consequently, mutation was also declared to be null and void thus, issues No.2 and 3 were decided in favour of the plaintiff/ appellant. On issue No.1, learned trial court by accepting the version set up in the plaint of the plaintiff came to the conclusion that the plaintiff/ appellant was proved to be owner in possession of the suit land by deciding issue No.1 in favour of the plaintiff/appellant. Issues No.4 to 7 and 11 to 13 were decided against the defendants/respondents being not pressed. On issue No.8, it was held that the civil court had jurisdiction to adjudicate upon the matter as the question of title could only be decided by the civil court and not by revenue court. Issue No.10 was decided against the defendants and it was held that the suit land was not permissible area of the defendant/respondents. On issue No.14, learned trial court held that in view of the purchase, defendant No.4 ceased to be the tenant of defendant/respondents. Consequently, the suit was decreed. Defendant/respondents preferred an appeal against the judgment and decree passed by the learned trial court and the learned lower appellate court was pleased to reverse the findings recorded by the learned trial court on issues No.1, 2 and 8 and accepted the appeal thereby dismissing the suit filed by the plaintiff/appellant. Learned lower appellate court was pleased to notice that the learned trial court had failed to take into consideration the admitted fact in the case i.e. that Ram Dita Mal was a big land owner and Jiwand Singh was RSA No.866 of 1993 8 tenant under Ram Ditta Mal. Ram Ditta Mal was the husband of defendant No.1 and father of defendants No.2 and 3. Jiwand Singh filed an application against Ram Ditta Mal for purchase of land measuring 166 kanals 19 marlas situated in village Kharbala, Tehsil Hansi, District Hisar under section 18 of the Punjab Security on Land tenures Act, 1953 (for short the Act). The said application was accepted and Jiwand Singh was allowed to purchase the land measuring 48 kanals 2 marlas and 15 kanals 11 marlas by way of 2 different sales. Both Jiwand Singh as well as Ram Ditta Mal challenged the order before the appellate court and the finality to the rejection came by passing of order by Financial Commissioner dated 11.7.1979 Ex.D.2. Learned Financial Commissioner was pleased to remand the case for re- decision of purchase application after deciding the surplus area case of Ram Ditta Mal as till the date of passing of said order no decision with regard to the surplus area of Ram Ditta Mal had been taken. Learned Financial Commissioner, therefore, was pleased to hold that until and unless surplus case of land-owner is decided the purchase application of the tenant could not be decided. Learned trial court as well as the learned lower appellate court rightly held that the surplus area case was to be decided first and thereafter the application of tenant for purchase of land was to be decided. It was in pursuance to the remand order by the Financial Commissioner that the matter came to Assistant Collector First Grade, Hansi with the direction already noticed in the judgment of learned trial RSA No.866 of 1993 9 court. In view of the findings referred to above vide which learned Financial Commissioner had set aside the purchase application moved by the plaintiff/appellant with a direction to decide the same afresh after determining the surplus area learned lower appellate court was pleased to observe that it was the duty of Assistant Collector First Grade to correct the revenue record in order to decide the surplus area case. Learned lower appellate court, thus, reversed the finding of the learned trial court, holding that the application under section 144 of the Code, was not to be decided prior to adjudication of purchase application. The learned court also noticed that during the pendency of the purchase proceedings Jiwand Singh fictitiously sold 20 kanals 10 marlas of land to Smt.Chandro for a sum of Rs.10,000/-. Similarly, Jiwand Singh sold 27 kanals 12 marlas of land to Ram Sarup etc. for Rs.14000/- and the total land i.e. measuring 48 kanals 2 marlas was exchanged with the plaintiff/appellant. Thereafter, by way of collusive decree whole land was given to the plaintiff/appellant. Thus, the learned lower appellate court came to the conclusion that the exchange in favour of plaintiff/appellant was hit by principle of lis pendens as the dispute regarding purchase of Jiwand Singh was pending before the revenue authorities. Learned lower appellate court also held that Jiwand Singh could not have sold the land as order Ex.D.2 was passed on his application by the learned Financial Commissioner. Learned lower appellate court, thus, was pleased to hold that transferee cannot derive a better title than the transferor. Learned lower appellate court thereafter held that the Financial Commissioner in purchase RSA No.866 of 1993 10 case accepted the revision and remand the case for determination of surplus area of land owner before deciding the purchase application moved by tenant. The relationship of landlord and tenant continued and no valid order conferring right of ownership or tenant could be passed. Learned lower appellate court also rightly held that it is only after the declaration of surplus area that the land owner could select his permissible area and prior to selection there could be no question of purchase, by the tenant or any other person eligible to purchase. Learned lower appellate court also held that merely because intalments were deposited by Jiwand Singh, could not give title to him of the property. Learned lower appellate court was also pleased to hold that once admittedly the surplus area case of the land owner as well, on the purchase application was before the revenue authorities, the suit was barred under section 25 of the Act. The learned lower appellate court also held that the plaintiff/appellant could not claim himself to be owner of the property in dispute in view of the facts stated above and consequently, reversed the findings of the learned trial court on issues No.1, 2 and 8 and thus, dismissed the suit. Learned counsel for the appellant contends that this appeal raises the following substantial questions of law:- 1. Whether the judgment of learned lower appellate court is the outcome of misreading of the order passed by the RSA No.866 of 1993 11 learned Financial Commissioner as well as the provisions of law and therefore perverse? 2. Whether the learned lower appellate court could reverse the findings of the learned trial court though the plaintiff/appellant had proved bona fide exchange, with the registered owners of the property? In support of substantial questions of law, learned counsel for the appellant contends that the learned Financial Commissioner by way of order Ex.D.2 had not rejected the claim of the plaintiff Jiwand Singh of purchase but has merely remanded the case back for decision on the surplus area of the land owner and thereafter to adjudicate right of Jiwand Singh to purchase the suit land. Till the decision was taken on the surplus land parties were required to maintain status quo and there was no occasion for the learned Assistant Collector First Grade to have changed the revenue record. Therefore, the judgment of the learned trial court was based on correct interpretation of the order of learned Financial Commissioner which has been wrongly reversed by misinterpreting the order. The finding of the learned lower appellate court was, therefore, claimed to be perverse. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. It was the learned trial court which misconstrued the order passed by the learned Financial Commissioner. The very fact that the appeal was allowed in favour of the defendant/respondents and it was the plaintiff/ appellant who had gone in revision before the learned Financial Commissioner, and the very fact that RSA No.866 of 1993 12 directions were issued for adjudication of the surplus area case and thereafter decide the application meant that the order of purchase was set aside, as in absence of setting aside of order, there was nothing with the Assistant Collector First Grade to decide the surplus area of land owners. No fault even can be found with the change of revenue entries as under section 144 of the Code as the party, who took benefit under an order which subsequently is set aside is required to return the benefit. This is what the Assistant Collector First Grade has done. It cannot be said that there is any misreading of the document or that the finding of the learned lower appellate court is perverse. It is the contention of the learned counsel for the appellant that in the present case learned trial court had given a good and valid reason to uphold the exchange, in favour of the plaintiff/appellant as admittedly on the date of exchange Sh.Jiwand Singh was registered owner in possession of the property, and a registered sale deed executed in favour of the vendees was executed, who in turn exchanged the property with the plaintiff. No knowledge could be attributed to the plaintiff of the pending litigation. Therefore, the plaintiff was bona fide transferee and the learned lower appellate court, therefore was not right in reversing the judgment and decree passed by the learned trial court. This plea of the learned counsel for the appellant also cannot be accepted. The appellant was one of the parties to litigation. In any case, in order to succeed in the plea of bona fide purchaser the plaintiff/appellant had to prove that it was on the basis of representation made by true owner, RSA No.866 of 1993 13 that an impression was created that Late Jiwand Singh was owner. In the absence of proof of any act or inaction on the part of the true owner, the plaintiff/appellant could not claim to be bona fide purchaser, especially when the transaction in his favour was hit by principle of lis pendens. He was bound by the final adjudication being transferor lis pendens. The learned lower appellate court, therefore, rightly came to the conclusion that the plaintiff/appellant is not entitled to claim any benefit of transfer in his favour in view of section 52 of the Transfer of Property Act, as admittedly, there was litigation pending between Late Jiwand Singh and the defendant- respondents with regard to the purchase, which ultimately resulted in favour of the defendant/respondents. In view of what has been stated above, the substantial questions of law are answered against the plaintiff/appellant. Thus, finding no merit in the present appeal it is ordered to be dismissed but with no order as to costs. 28.04.2009 (Vinod K.Sharma) rp Judge