Regular Second Appeal No. 2591 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2591 of 1986 Date of decision: 19.01.2010 Mohan Lal and others ...appellants Versus Shankroo ...respondent. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Sudhir Mittal , Advocate for the appellants. Mr. J.K. Sibal, Senior Advocate with Mr. Sapan Dhir, Advocate for the respondent. ***** RANJIT SINGH J. 16 appeals were disposed of by common judgment as the issue of facts and law involved in all these appeals were identical. 16 Regular Second Appeals accordingly have been filed which are now being disposed of by this common order. The facts in the common order while disposing of 16 appeals were noticed from Appeal No. 276 of 1985, which has given rise to RSA No. 2595 of 1986. Accordingly, the facts are noticed from this appeal. Respondents herein were the tenants of the appellants, who were big land owners. The tenants (plaintiffs) filed a suit for declaration to the effect that they are owner in possession of the land comprising in various killa numbers situated in village Kalotha, Tehsil Ratia, District Hisar. It was further pleaded that there was no relationship of landlord and tenant between the parties and thus the order dated 30.05.1984 passed by the Assistant Collector 2nd Grade, Regular Second Appeal No. 2591 of 1986 2 Rattia directing the plaintiffs-tenants to pay Batai to the defendants- landlords within 30 days and in default directing their ejectment from the land in dispute was illegal, without jurisdiction, void and not binding on the plaintiff-tenant. Prayer for permanent injunction against the defendants as a consequential relief to the effect that the tenants should not be ejected from the land in dispute in execution of the impugned order passed by the Assistant Collector 2nd Grade, Ratia was also made. The plaintiffs-tenants claimed to be in possession of land in dispute, which was described in the headnote of the each plaint. Plaintiffs-tenants had disputed the relationship of landlord and tenant between the parties to the suit and had thus termed the order dated 30.05.1984 passed by the Assistant Collector 2nd Grade, Rattia ejecting the tenants under the provisions of the Punjab Security of Land Tenures Act (hereinafter referred to 'Act'), 1953 as illegal and without jurisdiction etc. Plea was that the plaintiffs-tenants had purchased suit land under Section 18 of the Act and the appeals and revision etc. preferred by the landowner against the purchase orders had been dismissed by the Collector, Commissioner and the Financial Commissioner. It was accordingly urged that as a result thereof, the relationship of the landlord and tenant between the parties had come to an end. The plaintiffs had also claimed that they were in possession of the suit land as owner in the revenue record and in this background it was beyond the jurisdiction of the Assistant Collector 2nd Grade, Rattia to decide the question of title between the parties. In response to the notice, the landlord-defendant filed Regular Second Appeal No. 2591 of 1986 3 written statement claiming that plaintiffs were in cultivating possession of the suit land as a tenant at will under the defendants subject to payment of 1/3rd batai. The factual position, however, was conceded that plaintiffs-tenants had purchased the suit land under Section 18 of the Act. It was also conceded that appeal, against the order passed by Assistant Collector Ist Grade, Hisar, allowing purchase application of tenant was dismissed by the Collector and so also the revision against these orders by the Commissioner and the Financial Commissioner. The order passed by the Financial Commissioner in this regard as noted hereinabove, however, was challenged before this Court through Civil Writ Petition No. 204 of 1967 by the appellants-landlord, and vide order dated 08.01.1973, the order of the Financial Commissioner was set aside and the matter remitted back to him (Financial Commissioner) to decide it afresh. This case is still pending before the Financial Commissioner. As on date the Financial Commissioner, Haryana has not so far passed any fresh order. It is on this basis pleaded by the counsel for the appellant that the order of purchase, which is being relied upon by the plaintiffs-tenants would not be available and would stand rescinded due to the order passed by this Court in civil writ petition referred to above. It is thus pleaded that the order passed by the Assistant Collector 2nd Grade, Rattia dated 30.05.1984, which infact was being impugned through this suit would not suffer from any infirmity whatsoever. The appellant-landlord have further urged that the plaintiffs-tenants would have no locus to file the civil suit and that the jurisdiction of the civil court would be barred to entertain a suit to deal with the challenge of orders passed by Assistant Collector 2nd Regular Second Appeal No. 2591 of 1986 4 Grade, Rattia. Plea is that this order could be challenged before Revenue authorities only. It was also pleaded that the suit would not be maintainable and the tenants were estopped from filing the suit by their own act and conduct. Plea of suit being barred on principle of res judicata was also raised on the ground that it was a vexatious suit. On the basis of these pleadings made by the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner and in possession of the suit land?OPP. 2. Whether the impugned order passed by Assistant Collector 2nd Grade, Rattia is illegal, null, void and not binding upon the plaintiff?OPP. 3. Whether the civil court has no jurisdiction to entertain and try the present suit?OPD. 4. Whether the plaintiff has no locus standi to file the present suit?OPD. 5. Whether the suit is not maintainable in the present form?OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD. 7. What is the effect of not preferring appeal by the plaintiff against the impugned order before the competent authority under the Punjab Security of Land Tenures Act, 1953?OPD. 8. Whether the suit is barred u/s 10 CPC?OPD. 9. Whether the defendant are entitled to any special costs u/s 35-A CPC? OPD. Regular Second Appeal No. 2591 of 1986 5 10.Relief. The suits filed by the plaintiffs-tenants were decreed by holding that issues No. 1 and 2 stood proved and issues No. 3 to 9 not proved. The present appellant accordingly impugned the said judgment and decree by filing the appeal, which was also dismissed and so the present Regular Second Appeals were filed to challenge both the judgments passed by the trial Court as well as by the First Appellate Court. Certain facts and the development that took place during the pendency of the proceedings may also need to be noticed. These facts which may be relevant for deciding the case are not much in dispute. It is pointed out before me that the surplus area of the appellants-landlord was declared on 2.5.1964. Application for purchase under Section 18 was filed by the respondents-tenant, which was allowed on 31.07.1964. Against this order, the appellant had filed the appeal and revision etc. but the purchase was upheld up to the Financial Commissioner. The appellants-landlord had then filed Writ Petition No. 204 of 1967 to challenge the order passed by the Financial Commissioner. This Court had then remanded the case back to the Financial Commissioner vide its order dated 02.01.1973 . This order has been referred to and relied upon by the counsel for the parties. From this order, counsel for the appellants would contend that the issue of purchase thus has to be considered as sub judice and the effect thereof is that the title of the tenant being owner has still not perfected. He would, accordingly, contend that the necessary consequence of this would be that the finding returned by Regular Second Appeal No. 2591 of 1986 6 the Court that the tenants had become owner and were not required to pay the rent which are under challenge through the present RSA would need interference. Of course this plea made by the counsel for the appellants has faced a vehement opposition from the counsel for the respondents, who would make a pointed reference to the limited issue on which the High Court had remanded the case back to the Financial Commissioner and would urge that this order by no stretch of imagination can be read to mean that the issue of purchase was still open to have effect on the impugned orders. The counsel would submit that this order was passed on concession of both the parties and that the Financial Commissioner was only required to see if the land in dispute formed part of selected area of the landowner or not. It is thus stated that the Financial Commissioner was not to go into any other aspect of the purchase or its validity. The order passed by this Court while remanding the case back to the Financial Commissioner would need notice to appreciate the rival submissions made by the counsel. This order runs as under:- “ It is not necessary to state the facts as the learned counsel for the parties agree that in view of the Full Bench decision of this Court in Dhaunkal V. Man Kaur and another, 1970 P.L.J. 402, the Financial Commissioner could not get into the legality and propriety of the proceedings relating to the declaration of the surplus area and to that extent the learned Financial Commissioner's decision cannot legally be sustained, that the case may be sent back to the learned Financial Regular Second Appeal No. 2591 of 1986 7 Commissioner to find out whether the land in dispute which is sought to be purchased, form part of the selected area of the petitioner or not, that this fact has to be found out from the evidence existing on the record, that neither party would be allowed to lead any additional evidence to prove that the land in dispute forms part of the selected area, that in case the land in dispute is found to be part of the selected area of the landowner, then the application of purchase filed by the private respondents has to be dismissed that in case, the land in dispute does not form part of the selected area and for that there is no proof on the record, then the private respondents would be entitled to purchase the land in dispute in accordance with the order of the Assistant Collector Ist Grade, and that if the land in dispute is not found to be forming part of the selected area, then no other matter is to be determined and the right of the private respondents to purchase that land is to be taken as final, in view of this statement of the learned counsel for the parties, I allow the petition, quash the impugned order of the learned Financial Commissioner dated 5th September, 1966 (copy annexure 'D' to the petition) and send back the case to him for deciding the matter afresh, in the light of the agreed statement made by the learned counsel for the parties, referred to above.” Counsel for the respondents by making reference to the above order passed would further point out that some of the tenants Regular Second Appeal No. 2591 of 1986 8 of the landowner had filed appeal and other proceedings against the order through which the land of the present appellants was declared surplus. The proceedings resulted from this litigation had moved from one Forum to another and finally on 30.03.1979, 240 acre area of the appellant was declared surplus. This order passed by the Collector was produced before the First Appellate Court also and is on record as Ex.C1. This order was taken in appeal before the Commissioner and in revision before the Financial Commissioner but was upheld. Writ Petition No. 1216 of 1986 was filed against the said order before this Court, which was dismissed on 11.03.1996. The appellant had then moved the Hon'ble Supreme Court by way of SLP, which was also dismissed. It is to be noticed that while upholding the order of Financial Commissioner, this Court had granted liberty to the appellants to pursue their application to get benefit, if any, of transfer made by the big landowner i.e. the father of the appellants, in the light of the provisions of Haryana Ceiling of Land Holdings Act (for short 'Ceiling Act'), 1972. In exercise of this liberty, the appellant had moved an application before prescribed authorities under the Act praying for exemption of the land, which was statedly transferred prior to the appointed date under the Act, though SLP had been dismissed as noted above. Highlighting these facts, counsel for the appellants would contend that the issue of the title of the respondents-tenant is still to acquire finality. He would submit that if ultimately it is held that some of the land, which was transferred by the big landowner prior to the appointed date, then the right of the tenant to purchase this land would certainly get effected. To counter this counsel for the Regular Second Appeal No. 2591 of 1986 9 respondent would refer to orderEx.C1. Counsel refers to a finding recorded therein that the landowner could not produce any record showing reservation of selected area if made by him in the year 1953 and 1958. It is also noted in the order that the landowner could not give the list of permissible area despite opportunity. These findings are indeed found recorded in order Ex-C1 which have been highlighted before me. The counsel would, accordingly, contend that what evidence now would the landowner produce to show that the selection was done by him i.e. the father of the appellants specially so when he is no more alive. The counsel for the appellants would still plead that they have a liberty to produce the record in this regard before the competent authorities and hence if the finding in the present RSA is affirmed regarding the ownership of this land in favour of the respondents-tenant, it would prejudice their case before the Financial Commissioner as well as before the authority under the Land Ceiling Act. As per the counsel, the matter of title of the tenant is still sub-judice. From the pleas raised by the parties, two issues would arise for determination in the present RSAs. Substantial question of law for which these RSAs apparently were admitted would relate to the jurisdiction of the Civil Court to entertain the suit on the ground as pleaded that order passed by the Assistant Collector of eviction of the tenant which had decided the title of the property could not have been challenged by filing a civil suit. Incidentally counsel for the appellants has also prayed that the title of the respondents-tenants has not perfected it being sub judice, in view of the matter having Regular Second Appeal No. 2591 of 1986 10 been remanded by this Court to the Financial Commissioner, who is yet to decide the same. The effect of this remand order on the finding on the basis of plea that matter of title is sub judice is another question of law which would arise in this case. The plea further is that the liberty given to the appellants to take appropriate action to claim benefit of the transfer in view of Ceiling Act would still make an issue of title to be sub judice. It is thus pleaded that the finding returned on the title by the trial Court as well as by the First Appellate court, thus cannot be sustained. The question of maintainability of the suit on the ground that the order passed by the Assistant Collector 2nd Grade could not have been challenged through the civil suit or that this suit was not maintainable has been rightly decided by the courts and needs to be affirmed. The respondents-tenants had not filed a suit simply to challenge the order passed by the Assistant Collector to direct the respondents to pay the Batai. Infact the nature of the suit and the relief claimed has been noted in detail in the earlier part of the order. This was a suit for declaration seeking that the respondents have become owner of the land in question by virtue of their purchase application under Section 18 having been allowed. The plea that the order passed by the Assistant Collector 2nd Grade to direct their ejectment or payment of land/batai be set aside being unsustainable was sought being a consequential relief. This part of the relief was indeed a consequential relief to the main relief of declaration as sought in the suit. It could not be seriously disputed before me that the title of this land could not have appropriately been sought by making Regular Second Appeal No. 2591 of 1986 11 claim before the revenue authorities and if any party was interested in seeking title to the property, the appropriate remedy was to file a civil suit. The mere fact that a relief of consequential nature was also claimed while filing a suit for this declaration claiming title to this property on the ground that they have now become owner by virtue of their purchase having been allowed in their favour cannot effect the right to seek this declaration. It can not be said that the order under challenge, was that of Assistant Collector 2nd Grade because the suit filed was for declaration and the main relief claimed in the suit was of declaration of title which was clearly maintainable and this limb of the submission thus made is without merit and is rejected. The finding of the courts below in regard to the maintainability of the suit is thus upheld. The second submission made on behalf of the appellants is that the title of the tenant is still sub judice and as such has not perfected and the finding given by the trial Court in this regard as well as by the First Appellate Court thus would call for interference. I am afraid, I will not be able to accept this line of submission as well. No doubt there is some cloud still hanging over the title but as on date there is finding standing in favour of the tenant. There is no finding in this regard which would support the land landowner. The application of purchase filed by the tenants under Section 18 was allowed long ago. The appeal was dismissed and the revision filed against the said order was also dismissed on 03.11.1965. Thus, there is a finding in favour of the tenants that they have become owners and cannot be treated as tenants after their purchase application having been allowed. The Financial Commissioner had also upheld this order. A Regular Second Appeal No. 2591 of 1986 12 court may have remanded the case to Financial Commissioner but the order passed by Assistant Collector 2nd Grade, Collector and Commissioner are still intact. The operation of these orders have not been stayed while remitting the case to Financial Commissioner. Merely because some order may be made in future by the Financial Commissioner to say that the title is sub judice would amount to nullifying the valid and legal orders passed by competent authority. Let us even see what is the scope of consideration by the Financial Commissioner while dealing with this case on remand. The order passed by this Court has been reproduced above, which would clearly show that the Financial Commissioner now is to determine the limited issue. The entire purchase or right of the tenants to purchase is not under question now. Apparently, there was no material before the Court or the authorities to show if the area which was permitted to be purchased by the tenant formed part of the selected area by the big landowners or not. It is only to find out this aspect of the issue that the matter was remanded to the Financial Commissioner. It has specifically been observed by this Court that no party would be allowed to lead any additional evidence to prove that the land in dispute formed part of the selected area. The Financial Commissioner is to find this on the basis of material that is already placed on record. This is an agreed order between the parties. Thus there is a substance in the submission made by the counsel for the respondent that the right of the respondents-tenant to purchase this land is not an issue, which would now be in dispute before the Financial Commissioner. The counsel is also justified in submitting that if some consequence has to follow on the basis of Regular Second Appeal No. 2591 of 1986 13 any order that may be passed by the Financial Commissioner that would be then seen and the parties would still be at liberty to take any remedial measures against any said order, if so passed. He would thus submit that it would not be appropriate to interfere in the finding of fact recorded by the trial Court as well as by the First Appellate Court on the ground that some order in future may be passed or that issue is still open before the Financial Commissioner. It can be said that these are two separate proceedings having no effect inter se on each other. Ultimately, the order which is finally made may be taken into consideration by the parties concerned to make any appropriate plea in any Forum, where the proceedings may be pending but to say that because of pendency of the matter before the Financial Commissioner the tenant has no title to show cannot be accepted. As on date the tenant has an order in his favour that he is declared owner and no legal principle or precedent is cited before me that the judgment impugned can be interfered with because some suit is pendency before the Financial Commissioner or other authorities. I am not inclined to interfere in the finding of fact recorded by the trial Court as well as by the First Appellate Court. Accordingly, the Regular Second Appeals, therefore, are without merit and are accordingly dismissed. January 19, 2010 ( RANJIT SINGH ) rts JUDGE