Regular Second Appeal No. 3933 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 3933 of 2011 Date of Decision: 27.9.2011 Anil and Others ... Appellants Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Raj Mohan Singh , Advocate for the appellants. Kanwaljit Singh Ahluwalia, J. (Oral) Bhim Singh and his sons, namely Jaipal Singh and Narender Singh instituted a suit for declaration with a consequential relief of permanent injunction praying that a decree be issued against the State of Haryana through its Collector, Rohtak, restraining them from taking possession of the suit land, detail and description whereof has been given in the plaint, after declaring the plaintiffs to be the owners in possession of the suit property. It has been pleaded in the suit that Bhim Singh, plaintiff No.1 and his brother Ganga Singh were owners in possession of the land comprised in khewat No. 234 khatoni Nos. 518 to 536 kittas 177 measuring 1292 kanals 18 marlas situated within the revenue estate of village Samargopalpur, Tehsil and District Rohtak, Regular Second Appeal No. 3933 of 2011 2 according to fard jamabandi for the year 1960-61. It was averred that the State of Punjab had acquired the agricultural land of plaintiff No.1 Bhim Singh and his brother Ganga Singh to the extent of 402 kanals 16 marlas vide mutation No. 2586 dated 15.9.1962. Another agricultural land measuring 25 kanals 18 marlas was also acquired and a separate mutation No. 2693 dated 12.10.1962 was sanctioned. Lateron, another land measuring 216 kanals was acquired vide mutation No. 2085 dated 5.9.1962. It was further stated that plaintiff No.1-Bhim Singh and his brother Ganga Singh had sold agricultural land measuring 112 kanals vide mutation No. 2545 dated 27.5.1960 and again they had sold the lands measuring 20 kanals 4 marlas, 19 kanals 11 marlas and 3 kanals 8 marlas and mutations to these sales were carried out in the revenue record. It is further pleaded in the suit that plaintiff No.1-Bhim Singh and his brother Ganga Singh had partitioned the agricultural land and mutation to this effect was recorded in the revenue record on 21.12.1966. After partition, plaintiff No.1-Bhim Singh became owner in possession of 273 kanals 19 marlas of land, whereas his brother Ganga Singh became owner in possession of the land measuring 273 kanals 17 marlas. Furthermore, plaintiff No.1 had transferred 2/3rd share of agricultural land in favour of his two sons, namely Jai Pal Singh, plaintiff No.1 and Narender Singh, plaintiff No.3. After giving details of various transactions, it was stated that plaintiff No.1 has become owner in possession of the land measuring 36 kanals, whereas plaintiff No.2-Jai Pal Singh and plaintiff No.3-Narender Singh have become owner of 26 kanals 8 marlas each of the land. The details and description of the land, upon which the plaintiffs are in possession, were given in Regular Second Appeal No. 3933 of 2011 3 paragraph No.5 of the plaint. It was further stated that plaintiff No.1- Bhim Singh was owner in possession to the extent of ½ share of agricultural land measuring 1 kanal 1 marla which has been illegally mutated in favour of the defendant. After giving all the details, plaintiff No.1-Bhim Singh, his brother Ganga Singh and sons Jai Pal Singh and Narender Singh have filed an application before the Sub Divisional Magistrate, Rohtak, for exemption of surplus land in April 1997. Their application was dismissed vide order dated 31.3.2003, wherein it was specifically stated that the land of plaintiff No.1-Bhim Singh and his brother Ganga Singh was declared surplus on 21.2.1959. It was pleaded in the suit that a certified copy of the said order dated 21.2.1959 was not made available by the Copying Agency. It was further pleaded that even the defendant had not disclosed that the Sub Divisional Magistrate/Prescribed Authority had held that the land of the plaintiff had been declared surplus. Upon issuance of the notice, a written statement was filed by the defendant-State of Haryana, wherein the preliminary objections were raised regarding maintainability of the suit, non-joinder and misjoinder of the necessary parties, cause of action, issuance of notice under Section 80 CPC, suit being barred by limitation and the Civil Court had no jurisdiction to try the same. A definite stand was taken in the written statement that plaintiff No.1-Bhim Singh and his brother Ganga Singh were owners in possession of the agricultural land measuring 1292 kanals 18 marlas. They were big land owners, so 156 S.A. 3 Units of the land were declared surplus under the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as “Act 1953”) vide Regular Second Appeal No. 3933 of 2011 4 order dated 21.2.1959 passed by the Collector (Agrarian), Rohtak and 402 kanals 16 marlas of land of both Bhim Singh and Ganga Singh, was transferred to the State of Punjab vide mutation No. 2586 dated 15.9.1962. The defendant admitted the sale of land made by the plaintiffs and the partition between plaintiff No.1-Bhim Singh and his brother Ganga Singh. It was further admitted that plaintiff No.1-Bhim Singh had transferred the land in favour of his sons. It is stated that all these transfers are illegal, as per the provisions of the Act 1953 and the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as “Act 1972”). The land of the plaintiffs, being big owners, was declared surplus as per the provisions of the Act 1953 and Section 12(23) of the Act 1972. The application, filed by the plaintiffs, before the Prescribed Authority, Rohtak, seeking exemption of surplus land, was dismissed. The order passed by the Prescribed Authority was not challenged in any appeal or revision. The surplus land has already been allotted on 8.1.1977 to the eligible persons and the plaintiffs have no concern with the suit property. After the completion of the pleadings, the trial Court had drawn the following issues:- “1. Whether the plaintiffs are owners in possession of the land as mentioned in para No.5 of the plaint? OPP 2. Whether the mutation No. 4006 dated 28.10.1980 and entries in the column of ownership of jamabandi in favour of the defendant is illegal, inoperative, nonest, Regular Second Appeal No. 3933 of 2011 5 void and against the law? OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD 5. Whether the Civil Court has no jurisdiction to try and decide the present suit? OPD 6. Whether the suit of the plaintiff is bad for non-joinder and misjoinder of necessary parties? OPD 7. Relief.” The parties to the suit led their evidence. The trial Court relied upon the admission made by Bhanwar Singh son of Ganga Singh, brother of plaintiff No.1-Bhim Singh, while appearing as PW.1 in another case titled as “Bhanwar Singh v. State of Haryana” and in his cross examination that the land was declared as surplus on 21.2.1959 and in the years 1953 and 1962-63, the plaintiffs were neither owners nor in possession of the disputed property. The trial Court further held that one Lal Chand had purchased the land measuring 24 kanals from Ganga Singh, brother of plaintiff No.1-Bhim Singh on 13.5.1958. The Collector, in his order dated 12.6.2002, came to the conclusion that once the land has been declared as surplus under the Act 1953, the same cannot be re-opened under the new Act i.e. Act 1973. The trial Court stated that on those proceedings, Ganga Singh and Bhim Singh, present appellant/plaintiff No.1, were the respondents. A revision petition was Regular Second Appeal No. 3933 of 2011 6 filed against the said order and the same was also dismissed by the Collector, Rohtak, vide order dated 22.12.2004. The second revision petition was also dismissed by the Financial Commissioner, Haryana, vide order dated 28.8.2007. Thus, the trial Court has held that it was in the knowledge of the plaintiffs that the land has been declared as surplus. The trial Court further held that the civil suit was filed by the plaintiffs against the orders dated 5.8.1996 and 23.10.1996, passed by the Collector (Agrarian). The proceedings culminated into the decision of Regular Second Appeal No. 4798 of 2001 against the present appellants/plaintiffs. The trial Court further held as under:- “15...Hon'ble High Court dismissed the second appeal filed by subsequent vendees from Ganga Singh and Bhim Singh and held that land purchased by appellants vested in State Govt. with commencement of Haryana Act and purchase by appellant was ineffective qua the rights of State Govt. Thus, it does not lie in the mouths of plaintiffs to say that plaintiffs and their predecessor had no knowledge of the fact that their land bearing 156 S.A. and 3 units was declared surplus vide order dated 21.2.59...” The Court relied upon various other reasons to deny relief to the appellants/plaintiffs. The trial Court further held that the very fact that the order dated 21.2.1959 was not available on the record as per the report dated 10.1.2006, is of no significance because Ganga Singh and Bhim Singh had a knowledge that the land was declared as surplus Regular Second Appeal No. 3933 of 2011 7 and they are having litigation on this score. Thus, the trial Court decided issues No.1 and 2 against the present appellants/plaintiffs and in favour of the defendant. The Court further decided issues No.3, 4 and 5 against the appellants/defendants. It was held that the land was declared surplus on 21.2.1959 and the present suit was filed on 31.7.2006 and the same was barred by limitation. The Court further held that the civil suit was not maintainable. Aggrieved against the same, the plaintiffs have filed an appeal. The lower Appellate Court has also dismissed the appeal by affirming the findings of the trial Court. Mr. Raj Mohan Singh, Advocate, appearing on behalf of the appellants, has submitted that once the order dated 21.2.1959 is not on the record, it cannot be assumed that the land was declared surplus. There is a long chequered history of litigation. The litigation has not only culminated in the Revenue Courts but also in the Civil Courts and the order declaring the land as surplus was also upheld. The order dated 21.2.1959 has been challenged by one Lal Chand and others, who have purchased the land from the plaintiffs. In that suit, the plaintiffs have been arrayed as defendants. Thus, the present civil suit of the plaintiff is nothing but a ploy to retain possession, on one pretext or the other, of the land which was declared surplus. Furthermore, it has come in the evidence that in the year 1977, the land, so declared surplus, was allotted. No allottee was impleaded as a party to the suit, which was essential. There being no substantial question of law, much less a substantial one, framed by the learned counsel for the appellants, for consideration of this Court, during the course of arguments, this Court Regular Second Appeal No. 3933 of 2011 8 cannot come to the rescue of the appellants and hence, the present appeal is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 27, 2011 “DK”