Regular Second Appeal No.2217 of 1985 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2217 of 1985 Date of decision: 12 .08.2011 Smt. Sowarn Dai ..... Appellant. Versus Puran Chand ..... Respondent. CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present:- Mr. O.P. Goyal, Senior Advocate with Mr. Varun Gupta, Advocate for the appellants Mr. Kabir Sarin, Advocate for the respondent. VIJENDER SINGH MALIK, J. Smt. Sowarn Dai, plaintiff has brought this regular second appeal against the judgment and decree dated 22.02.1985 passed by learned Additional District Judge, Gurdaspur whereby the appeal of Puran Chand , defendant had been accepted and the suit of the plaintiff- appellant had been dismissed. Smt. Sowarn Dai had brought the suit for possession of a vacant site described by boundaries in head note of the plaint, situated in Mohalla Majman, Batala, shown in pink colour with letters 'ABCD' in Regular Second Appeal No.2217 of 1985 -2- the site plan appended with the plaint after removal of the structure (Thara) constructed thereon illegally by the defendant. The case of Smt. Sowarn Dai is as under:- The vacant site was previously having pucca built double storeyed house bearing Khana Shamari no.2034 of the year 1917 and it belonged to Pandit Ram Rakha Mal son of Pandit Ganga Ram, resident of Mohalla Majman, Batala. Pandit Ram Rakha Mal was the father of Amar Nath, husband of the plaintiff and, therefore, father-in-law of the plaintiff. Ram Rakha Mal remained in possession of the said property as owner. After his death, Amar Nath, the husband of the plaintiff became its owner and had been in possession thereof. The house fell down being an old structure and, therefore, the property became a vacant site. The plaintiff started raising construction of walls towards West and South. There already existed joint wall of the plaintiff and the owner of the adjoining house towards north. When the construction of the walls was going on, the defendant illegally brought a suit for permanent injunction against the plaintiff in the court of learned Sub Judge, Batala on the allegations that he was in possession of the property and so he prayed for restraining the plaintiff from raising any construction. The court decreed the said suit and although the defendant was not in possession of the property in any capacity, he took advantage of the said judgment and decree and took possession of the same and constructed a Thara on the same. The plaintiff filed an appeal against the said Regular Second Appeal No.2217 of 1985 -3- judgment. The appeal was accepted by Senior Sub Judge on 13.10.1975 and had dismissed the suit of the defendant. In the suit filed by the defendant, in the court of Sub Judge, Batala, he had alleged that the disputed property was evacuee property. He took this plea with a view to harm the poor plaintiff, who had no other person to help her. The allegation of the defendant in this regard was found to be baseless. Claiming that she is owner of the property in dispute, she has asserted that she is entitled to possession thereof. As the request of the plaintiff to deliver possession of the property in question to her, fell on the deaf ears of the defendant, she had brought the suit. The defendant had contested the suit by taking some preliminary objections. He questioned the locus standi of the plaintiff to file the suit. He has claimed that the court had no jurisdiction to try the present suit as the same is barred under the provisions of The Administration of Evacuee Property Act, 1950((hereinafter referred to as 'the Act') . The defendant claimed himself to be a tenant of the custodian over the suit property and that he regularly paid rent regarding the property in question. He has further alleged that he had purchased the site in dispute from the Rehabilitation Department/ Custodian on paying Rs.1500/- on 29.3.1982, In support of his claim of title to the suit property, he has set up sale certificate dated 29.3.1982 issued in his favour by the Custodian/Rehabilitation Department. Non-payment of some costs was also claimed to make the suit not maintainable. The suit Regular Second Appeal No.2217 of 1985 -4- is also to be claimed bad for non-joinder of necessary parties. Custodian of the evacuee property is claimed to be necessary party to the suit. Lastly, claiming the market value of the suit property to be not less than Rs.4000/-, it is averred that the suit is not properly valued for the purpose of court fee and jurisdiction. In reply on merits, it is denied that there was a pucca double storeyed house bearing khana sumari no.2034 on the property in dispute and that it belonged to Pandit Ram Rakha Mal. The relationship of the plaintiff with Pandit Ram Rakha Mal is denied for want of knowledge. The property is also denied to be properly described in the plaint as well as in the site plan appended therewith. Ownership of Pandit Ram Rakha Mal over the disputed property is denied. The plea that the defendant was tenant over the property under the Custodian and the Government since 1965 and that he had purchased the same vide sale certificate dated 29.03.1982 is reiterated. It is claimed that in the suit brought by the defendant in the court of Sub Judge, Batala, the trial court decreed the suit but in appeal the discretionary relief of perpetual injunction was declined to him, as he was not proved to be owner of the disputed property. He has claimed that the plea he took in the previous suit was correct. Denying the plaintiff to be owner of the disputed property or that she is entitled to any relief, the suit was prayed to be dismissed. Taking replication to the written statement, the following issues were framed by the trial court:- Regular Second Appeal No.2217 of 1985 -5- “1- Whether the plaintiff has locus standi to file this suit ? OPP 2- Whether the court has no jurisdiction to try the present suit ?OPD 3- Whether the plaintiff is the owner of the suit property ?OPP 4- Whether the suit is not maintainable in view of the preliminary objection no.3 in the written statement ?OPD 5- Relief. Vide order dated 4.1.1984, the following additional issues were framed by the trial Court:- 4-A Whether the suit is not properly valued for the purpose of court-fee and jurisdiction ?OPD 4-B Whether the suit is bad for non-joinder of necessary parties ?OPD” The parties led their respective evidence. The plaintiff was found to have locus standi to file the suit under issue no.1. Under issue no.2 it was held that jurisdiction of the civil court to entertain and try the present suit is not barred. Learned trial court was at loss to find out as to how the custodian was a necessary party to the suit and so issue no.4-B has been decided against the defendant. Suit is found to be maintainable under issue no.4. The suit is also found to be properly valued for the purpose of court fee under issue no.4-A. Under issue no.3, the plaintiff was held to be owner of the suit property.Consequently, the suit Regular Second Appeal No.2217 of 1985 -6- succeeded and had been decreed vide judgment and decree dated 12.3.1984 by Additional Senior Sub Judge, Batala. Appeal preferred against the said judgment by Puran Chand, defendant had been heard by learned Additional District Judge, Gurdaspur, who has accepted the appeal vide judgment and decree dated 22.02.1985. Learned first appellate court confined itself to the question of jurisdiction of the civil court to entertain and try the present suit. Holding that the question involved in the suit was whether this property was or was not evacuee property, it came to the conclusion that the jurisdiction of the civil court to entertain the suit is barred. It was also observed that this question could not be decided in the absence of the Custodian of the Evacuee Property. Aggrieved by the aforesaid judgment and decree passed by learned First Appellate Court, Smt. Sowarn Dai, plaintiff has brought this regular second appeal. I have heard Mr. O.P. Goyal, learned Senior Advocate with Mr. Varun Gupta, Advocate for the appellant and Mr. Kabir Sarin, learned counsel for the respondent and have gone through the record of the case carefully. Referring the court to the provisions of section 46 of the Act, learned counsel for the appellant has submitted that the Custodian did not have any right to transfer the property without declaring it as evacuee property. According to him, no such declaration has been made Regular Second Appeal No.2217 of 1985 -7- by the Custodian under the provisions of section 7 of the Act. He has further submitted that the jurisdiction of the civil court to entertain the suit of this nature would only be barred if the property in question has already been declared as evacuee property under the Act. According to him, the appellant has not challenged any decision of Custodian declaring the suit property as evacuee property. He has further submitted that there is no such decision of Custodian declaring the suit property as evacuee property and, therefore, the jurisdiction of the civil court to entertain and try the suit would not be barred. Learned senior counsel for the appellant has taken me through para no.7 of the judgment of learned First Appellate Court and has submitted that the decision in Custodian Evacuee Property Punjab and others v. Jafran Begam (1968 PLR 1) re lied upon by learned court is distinguishable on the facts because in that case, the property had been declared by the Custodian as evacuee property. According to him, the validity of the decision of Custodian could not be challenged in the civil court and, therefore, jurisdiction of the civil court was held barred in that case. According to him, there is no such decision of the custodian declaring the suit property as evacuee property in this case and, therefore, the jurisdiction of the civil court in this case is not barred. He has submitted that the learned first appellate court has not gone on facts and that the evidence on record was sufficient to prove that the plaintiff-appellant is owner of the house in question and she is entitled Regular Second Appeal No.2217 of 1985 -8- to a decree for possession thereof. In this regard he drew my attention to Ex.PA and has submitted that this document of the year 1917 proves the ownership of the plaintiff/appellant over the property in question. Learned counsel for the respondent has submitted that there is not an iota of evidence on the record to prove the ownership of Pandit Ram Rakha Mal over the house in question. According to him, in the absence of the evidence of ownership of Pandit Ram Rakha Mal over the suit property, the plaintiff is not entitled to any relief. He has taken me through the statement of Smt. Sowarn Dai, who appeared as PW-2 in this case and has submitted that she had been before the Custodian making a claim to this property and that she had lost that claim and, therefore, the decision that the property is evacuee property can be presumed to have been made by the Custodian and the said decision cannot be questioned before the civil court in view of the provisions of section 46 of the Act. In the background of the pleadings of the parties and submissions made before me, I find the following substantial questions of law involved in this appeal:- “1- Whether the civil court has no jurisdiction to entertain and try the present suit? 2- Whether the appellant has been successful in establishing herself as owner of the property in question?” Ex.PA is the document of the year 1917, which relates to a property given Sr.No.2034. In the name of owner, the name of Pandit Regular Second Appeal No.2217 of 1985 -9- Ram Rakha Mal son of Ganga Ram appears. However, this document does not mention sufficient details of the property to connect it with the property in question. The material piece of evidence in this case is the statement of Smt. Sowarn Dai. In the examination-in-chief, she has stated that her father-in-law Pandit Ram Rakha Mal was owner of the property in question and after his death, her husband succeeded to this property and now Amar Nath, her husband has also died and thereafter the plaintiff came in possession thereof. She has then stated about the fall of the house and the defendant raising disputes when she tried to re- construct it. She has also stated about the previous litigation. In the cross-examination, she claimed to have forgotten if she had filed an application before Tehsildar(Sales) Gurdaspur in respect of the disputed house. An application which was addressed to Tehsildar (Sales) Gurdaspur was then read over to her and she had admitted having made that application in respect of the disputed house. She has further admitted that she had mentioned in the said application that case regarding that house was pending before Custodian General, Jalandhar. She has further admitted that she had made this application with a view to stop the auction of the house. She has also admitted that her case in the court of Custodian was pending regarding this very property for the last three years. She again tried to take shelter behind failure of memory regarding decision of that case. In the next sentence, she had admitted that the said case has been decided. She then claimed that the said Regular Second Appeal No.2217 of 1985 -10- decision has been made in her favour declaring that the land belonged to her. When she was asked to produce a copy of that decision, she claimed that she did not get the same so far. She had further stated that she had made an application 3-4 months back for obtaining a copy thereof. This statement of Smt. Sowarn Dai is wholly insufficient to prove her ownership over the suit property. She cannot take benefit of Ex.PA because the property mentioned therein is not proved to be the disputed property. She has admitted having made a claim to this house in the court of Custodian General, Jalandhar. Though, she has stated that the Custodian General, Jalandhar has decided that matter in her favour holding that the suit property belonged to her, she was not in a position to produce a copy of the same. On 22.7.1983 she made this statement and on that day, her application for obtaining copy of decision of Custodian General, Jalandhar was 3-4 months old. The suit was decided on 12.3.1984 and till that date no decision of Custodian General, Jalandhar was brought before the court. It clearly shows that she had made a claim over the property in question before the Custodian General and that she could not succeed in the same. On the other hand, by examining a clerk of Tehsildar(Sales), Gurdaspur as DW-1, the defendant has proved sales certificate Ex.DW3/A regarding the house in question in favour of the defendant. It has been the submission of learned counsel for the respondent that the Regular Second Appeal No.2217 of 1985 -11- statement of Smt. Sowarn Dai and sales certificate would clearly prove that this property has been declared as evacuee property and, therefore, the civil court would have no jurisdiction to entertain and try the present suit. From the statement of Smt. Sowarn Dai, it can definitely be inferred that she had been claiming the suit property to be owned by her and had contested the question as to whether it is an evacuee property. From her statement it can definitely be inferred that she did not succeed before the Custodian. However, that alone would not be sufficient for reaching the conclusion that a declaration under section 7 of the Act has been made with respect to the property in question. The question that would arise for adjudication here would be as to whether declaration under section 7 of the Act was required to be there before it can be held that the civil court has no jurisdiction to entertain and try the present suit. It would be evident from the pleadings of the parties that the question contested by the parties in this case is as to whether the property in question is owned by Smt. Sowarn Dai and is not the evacuee property. In other words, the question would be as to whether the civil court would have jurisdiction to try the suit even if the question involved between them was as to whether the property is or is not evacuee property. Section 46 of the Act is in the following terms:- “Jurisdiction of civil courts barred in certain matters.- Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction- Regular Second Appeal No.2217 of 1985 -12- (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property, or (b) ( xx xx xx xx xx ) (c) to question the legality of any action taken by the Custodian- General or the Custodian under the Act; or (d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.” Under the above mentioned provisions, the declaration by Custodian General or the Custodian is required to bar the jurisdiction of civil court under clause (c). However, under clause (a) what is expressly taken out of the jurisdiction of the civil court is a suit requiring the court to adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. This clause would definitely stand attracted to the facts of this case and since the question involved in this case is as to whether the house in question is or is not evacuee property, the jurisdiction of civil court to entertain and try the suit is barred. In view of the aforesaid discussion, both the substantial questions are decided against the appellant. Consequently the appeal is found to have no merit and is dismissed. ( Vijender Singh Malik ) August 12 , 2011 Judge dinesh