R.S.A. No. 321 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 321 of 1989 Date of decision: 20.02.2009 Dharamvir and others ....Appellants Versus Jee Sukh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Amit Jain, Advocate, for the appellants. Mr. P.S. Jammu, Advocate, for the respondent No. 1. ***** VINOD K. SHARMA, J (ORAL) The defendant/appellants by way of this regular second appeal have challenged the judgments and decree dated 7.9.1987 and 23.1.1989 passed by the learned Courts below decreeing the suit for declaration filed by the plaintiff/respondent to challenge the order dated 21.5.1962 passed by the Collector Surplus Area, Sirsa, and also the order dated 13.3.1987 passed by the Commissioner, Sirsa, vide which the land in his possession as tenant was declared surplus. The orders were claimed to be illegal, null and void, thus, liable to be set aside. Consequential relief for restraining defendants No. R.S.A. No. 321 of 1989 -2- 1, 3 and 4 from allotting the suit land to any person, and also for restraining them from interfering in the possession of the plaintiff over the suit land was sought. It was averred in the suit that previously the suit land was comprised in khasra No. 283/79 measuring 28 bighas 6 biswas and during the consolidatin proceedings, the suit land measuring 169 kanals 8 marlas was allotted in lieu of the land in his possession. The plaintiff claimed to be in continuous cultivating possession of the suit land since the year 1950 and claimed that the entries in revenue record showing cultivation of Bansi Ram S/o of Kishori Lal from the year 1950 to 1957 were wrong and against the facts. The plaintiff claimed himself to be cultivating the suit land ever since 1950. It was pleaded that Devi Ram S/o Jhandu Ram was never in possession of the suit land, as it always remained in the possession of the tenants and, therefore, it was to be declared as tenants' permissible area and not surplus under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the Act'). The case set up was that grave error was committed by declaring the suit land as surplus. This said error was purpetuated by the Commissioner, Sirsa in his order dated 13.3.1987 vide which he dismissed the appeal preferred by the plaintiff/respondent against the order dated 21.5.1962. It was pleaded that the orders were null and void and liable to be set aside having been passed without authority and jurisdiction, and without hearing the plaintiff/respondent. The subsequent allotment by defendant No. 4 was also said to be nullity on the plea that he could not R.S.A. No. 321 of 1989 -3- allot the suit land as the same was to be treated as tenants' permissible area. The plaintiff also sought exemption from notice under Section 80 of the Code of Civil Procedure. The suit was contested by defendants No. 1 to 3 and 4 by filing joint written statement wherein it was pleaded that the civil Court has no jurisdiction to try the suit in view of the bar created by Section 25 and Section 26 of the Haryana Ceiling on Land Holdings Act 1972. The plea that the suit was not maintainable for want of notice under Section 80 CPC was also raised. The suit was claimed to be time barred as the order dated 21.5.1962 was being challenged after a lapse of 22 years. On merits it was denied that the plaintiff was in cultivating possession of the suit land since the year 1950. It was claimed that plaintiff was in possession only since the year 1960-61, that the suit land was declared surplus in the hands of big land owner Devi Ram under the Act, and stood vested in the State of Haryana w.e.f. 24.1.1971. It was denied that the suit land should have been declared as tenants' permissible area. It was also denied that the impugned orders were invalid. The defendants claimed that the suit land was allotted vide order of alltoment dated 10.3.1981, which was not challenged by the plaintiff. The case set up by the defendants further was that the plaintiff/respondent was allotted 40 kanal of land out of the suit land as tenant of C.C. Category vide impugned order, while remaining suit land was allotted to eligible allottees/tenants. It was pleaded that the possession of the rest of the suit land was to be delivered to eligible alltotees and that the plaintiff was not going to suffer any injury in this R.S.A. No. 321 of 1989 -4- process. Defendants No. 5 to 7 in their separate written statement also took similar stand. It was asserted that the allotment was rightly made in their favour and the possession of the allotted land was delivered. The plaintiff instituted this suit, and other proceedings in order to put obstruction in the allotment. Defendants No. 5 to 7 claimed that they deposited instalments in Governemnt treausry, and taken possession of the suit land in accordance with law. On the pleadings of the parties, the following issues were framed. "1. Whether the impugned orders are null and void and liable to be set aside? OPP 2. Whether this Court has got jurisdiction to try this suit? OPP 3. Whether the suit is bad for want of notice u/s 80 CPC? OPD 4. Whether the suit is time barred? OPD 5. Relief." Issue Nos. 1 and 2 were taken up together and on the basis of evidence brought on record, the learned trial Court held that the suit land was in possession of tenants on 15.4.1953, and continued to be under the possession of the tenants even thereafter. The learned Court held that it was imperative on the Collector, Surplus Area, Sirsa, to issue notice to the plaintiff while passing impugned order dated 21.5.1962. The learned trial Court held that it was statutory duty of the Collector, Surplus Area, to call plaintiff and hear him under Rule 6(3) of R.S.A. No. 321 of 1989 -5- the Act, and also to follow the rules of natural justice. The learned trial Court was further pleased to hold that procedure in accordance with law was never adopted, and thus the order dated 21.5.1962 was clearly null and void, and the plaintiff was not bound by it. The learned Court also held that the Court's jurisdiction for such declaration is not barred under Section 25 of the Act. The learned trial Court placed raliance on the Full Bench judgment of this Court in State of Haryana and others Vs. Vinod Kumar and others, 1986 P.L.J. 161 to hold the order impugned was void being in violation of provisions of statute and also of principles of natural justice. The learned trial Court also placed reliance on the judgment of this Court in Dharam Singh Vs. The Financial Commissioner, Haryana, 1980 P.L.J. 93 wherein it was held that when the tenant is not heard at the time of determination of surplus area of land owner, the order passed would be in violation of Rule 6 Sub-rules (3) and (5) of the Punjab Security of Land Tenures Act, 1956, and the order would be wholly illegal and void. Reliance was also placed on the judgment of this Court in Bhupinder Singh Vs. State of Punjab, 1980 P.L.J. 72. The learned trial Court thus, held the orders to be nullity. The plea of the appellant/defendants that the plaintiff failed to prove that he was tenant in the suit land on 15.4.1953, was rejected by placing reliance on the judgment of this Court in Nanak Chand Vs. The Financial Commissioner, Haryana, 1981 P.L.J. 99 wherein this Court was pleased to hold that change of tenant was not to affect the permissible area of tenant. R.S.A. No. 321 of 1989 -6- The finding was recorded that the suit land remained under one tenant or the other right from 15.4.1953 till the impugned orders were passed, therefore, area was to be treated to be tenants' permissible area. The plea of the defendant/appellants that the plaintiff could not bring the suit in view of Ex. P-11, was rejected by holding that in absence of notice to the tenant during the proceedings under the Act the defect could not be curred even if the tenant was heard in appeal. This view was taken in view of the law laid down by this Court in Abhey Ram Vs.Financial Commissioner 1979 P.L.J. 294. Thus, issues No. 1 and 2 were decided in favour of the plaintiff. On issue No. 3, it was held that the plaintiff along with suit had filed an application for dispensing with service under Section 80 CPC because of the urgency of the relief claimed. The learned trial Court in order to overcome the technicalities granted permission for institution without notice under Section 80 CPC. Thus issue was treated to be redundant. The learned trial Court decided issue No. 4 against the appellant/defendants by holding that as the order impugned was null and void, therefore, there was no question of suit being time barred. In support of this finding, reliance was placed on the judgment of this Court in Kulbhushan Vs. Faquira ,1976 P.L.J. 480. The learned Court held that the validity of void order could be called into question at any time. The reliance was also placed on the judgment of this Court in State of Punjab Vs. Gurnam Kaur, 1984 P.L.J. 389, wherein this Court was pleased to lay down that the limitation to challenge an order starts when the same is sought to be given effect to The learned Court further held R.S.A. No. 321 of 1989 -7- that in the present case, the order impugned was sought to be implemented during the pendency of the appeal. The plea of the appellant/defendants that the order declaring the surplus area in violation of principles of natural justice is voidable and not void order in view of Division Bench judgment of this Court in Sadhu Singh Vs. Punjab State 1984 P.L.J. 356. The learned trial Court did not accept this plea by holding that cause of action arises when the order of allotment is made in pursuance of surplus order. The learned Court held that the final order of allotment could be said to have been passed only on 29.3.1984, and if the limitation is counted from the said date, the suit was within limitation. In view of the findings recorded above, the suit filed by the plaintiff was ordered to be decreed. In appeal, the findings recorded by the learned trial Court were affirmed. The learned counsel appearing on behalf of the appellants raised the following substantial questions of law: - "1. Whether there being no evidence of tenancy of the plaintiff as on 15.4.1953, the approach of the Courts below in decreeing the suit filed by the plaintiff can be sustained in law? 2. Whether in view of the fact that the plaintiff has availed the remedy of appeal before the Commissioner, the plaintiff is estopped from filing the civil suit for the same relief? 3. Whether in the facts and circumstances of the instant case, the jurisdiction of the civil Court is R.S.A. No. 321 of 1989 -8- not barred in view of the bar contained in Section 25 of the Punjab Security of Land Tenures Act, 1953? 4. Whether in the facts and circumstances of the instant case the approach of the learned Courts below is not perverse being based on the mis- reading and mis-interpretation of the oral and documentary evidence on record?" In support of the substantial questions of law, the learned counsel for the appellants contends that admittedly there was no evidence on record showing that the plaintiff/respondent was tenant over the land on 15.4.1953, which is the appointed date, and in absence of any evidence, the learned Courts below committed an error in law in holding that the orders impugned were void being in violation of statutory rules and principles of natural justice. The contention of the learned counsel for the appellants is that, in fact, no notice was required to be given to the plaintiff, as he was shown to have come in possession as tenant only in the year 1957. The learned counsel for the appellants thus contends that the first substantial question of law, framed, deserves to be answered in favour of the appellants, and finding on issues No.1 and 2, therefore, deserves to be reversed. It is also the contention of the learned counsel for the appellants that the substantial questions of law No. 2 and 3 also deserve to be decided in favour of the appellants inasmuch as it is the admitted case of the plaintiff/respondent was that he filed an appeal against the order of the Collector declaring area to be surplus area in the hands of big land owners. R.S.A. No. 321 of 1989 -9- Once the remedy of appeal was availed and attained finality, therefore, in view of Section 25 of the Act, the civil Court had no jurisdiction to entertain and try the suit filed by the plaintiff/respondent. The learned counsel for the appellants also points out that in the present case, there was ample evidence on record showing that the plaintiff/respondent had availed his remedy of appeal under the Act as he even challenged the allotment made to the appellants, but failed in both the proceedings. However, the said order was not challenged by the plaintiff/respondent in the civil suit. The contention, therefore, is that the suit filed by the plaintiff/respondent was not competent, and the judgment and decree is nullity having been passed by the Court having no jurisdiction to entertain the suit. On 4th substantial question of law, the learned counsel for the appellants contends that the findings recorded by the learned Courts below are perverse, as it was held by the learned Courts below that the plaintiff was not tenant on the appointed date and, therefore, there was no occasion for the Courts to have held the order to be void to hold that the civil Court had jurisdiction to entertain and try the suit. Mr. P.S. Jammu, learned counsel appearing on behalf of respondent No. 1 contends that the learned Courts below on appreciation of evidence rightly recorded the finding that on 15.4.1953, the land in dispute was under the tenant i.e. Banarsi Ram and, therefore, it could not be said that merely because plaintiff was not the tenant on said date, there was no necessity to issue notice to the land owner or the tenant. Once it was proved on record that no notice was issued before declaring the surplus area, the order has to be taken to be nullity being in R.S.A. No. 321 of 1989 -10- violation of Rule 6 of the Rules. It is also the contention of the learned counsel for respondent No. 1 that in view of the judgment of Full Bench of this Court in State of Haryana Vs. Vinod Kumar (supra), it could not be disputed that the civil Court had jurisdiction to entertain the suit filed by the plaintiff/respondent. The question referred to the Larger Bench in State of Haryana and others Vs. Vinod Kumar and others (supra) was: "Whether an order of a Collector declaring land as surplus without affording the concerned landowner an oppotrunity of being heard, as envisaged by rule 6 of the Punjab Security of Land Tenures Rules, 1956, is a nullity and whether a suit to challenge the validity of such an order is maintainable in view of the clear language of section 25 of the Act excluding the jurisdiction of the civil Court?" The question was answered in affirmative. In view of the reasons mentioned above, substantial questions of law No. 1, 2 and 3 are to be answered against the appellant/defendant by accepting the contentions raised by the learned counsel for the respondents. The learned counsel for respodnent No. 1 also contends that the learned Courts below have recorded concurrent finding of fact on appreciation of evidence. The finding recorded, therefore can neither be said to be perverse nor outcome of mis-reading of oral or documentary evidence, as is sought to be contended. There is force in the contention raised by the learned counsel for respondent/plaintiff. It is not in dispute that no notice to land owner R.S.A. No. 321 of 1989 -11- or the tenant was issued before declaring the surplus area. The learned Courts below, therefore, rightly held that the order impugned was null and void, which could not affect the right of the plaintiff, and decreed the suit. The substantial questions of law, referred to above, are, therefore, answered against the appellants/defendant. Consequently, this appeal is dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 20, 2009 R.S.