RSA No.4093 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4093 of 2010 (O&M) Date of decision: 29.10.2010 Aish Mohd. ......Appellant(s) Versus Tej Pal ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Pavan Malik, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration with consequential relief of permanent injunction to the effect that he has become owner of the suit land on account of the occupancy rights, was dismissed. It is the case of the plaintiff-appellant that he is in actual and continuous cultivating possession of the suit land as Gair Marusi for the last more than 100 years under the defendants on payment of land revenue. The suit land was Banjar at the time of inception of tenancy and the same was made cultivable by him. At the time of tenancy, the defendants and their predecessors promised that the plaintiff and his predecessors will never be ejected from the suit land and now the plaintiff has acquired the occupancy rights under the provisions of Punjab Tenancy Act and Section 3 of the Punjab Occupancy of Tenants (Vesting of Proprietary Rights) Act and the defendants had got no right and title in the suit land. The defendants on the basis of wrong and illegal entries in the revenue record were threatening to dispossess the plaintiff. Hence the present suit. RSA No.4093 of 2010 (O&M) 2 Upon notice, defendant No.5 i.e. Central Govt. Rehabilitation Department through Tehsildar (Sales) Gurgaon put in appearance and filed written statement. In the written statement, it was pleaded that the plaintiff had not complied with the provisions of Section 80 CPC prior to filing of the suit. It was further submitted that the suit land was recorded as Shamlat Deh in the revenue record and therefore, Panchayat Department was necessary party and the appellant had not arrayed Gram Panchayat knowingly. It was further submitted that the suit land does not belong to the Rehabilitation Department despite that the appellant made them as party and thus, the suit was liable to be dismissed for misjoinder of necessary party. The prayer for dismissal of the suit was made. The remaining respondents did not contest the suit and were proceeded against ex parte. Both the Courts below on appreciation of evidence have recorded a finding of fact that either way the suit of the appellant was not maintainable as if assuming for the sake of argument that the land in dispute pertains to Shamlat Deh then Gram Panchayat, who was the necessary party, was not arrayed as such and in case the appellant had filed the suit against defendant No.5, considering them as the owner of the suit property then the Union of India should have been sued through the competent authority which was not done in the present case and thus,the suit was dismissed. Still not satisfied, the appellant has filed the instant appeal submitting that the following various substantial questions of law arise in this appeal: “a) Whether shamlat deh is panchayat land? b) Whether State Government is a necessary party where the dispute is only with the central government? RSA No.4093 of 2010 (O&M) 3 c) Whether after having filed written statement, defended the case and also having filed appeal in connected matter on behalf of Union of India, Tehsildar Sales could have taken the objection for the first time in appeal that he could not represent Union of India and in fact it has to be arrayed through Secretary? d) Whether the Court is competent to join necessary party? e) Whether it is mandatory for the trial Court to give finding on all issues? f) Whether the appeal was required to be remanded back for the decision on the finding of possession as the Lower Appellate Court for the first time gave finding on possession and the appellant has been deprived of the right of first appeal to challenge the said finding? g) Whether non-compliance of Section 80 CPC would debar filing of fresh suit on the same cause of action? h) Whether presumption of truth is attached to the jamabandi? i) Whether in the absence of the denial of the averment as to requisite conditions of section 8 of Punjab Tenancy Act, the Lower Appellate Court was justified in rejecting the evidence on surmises and conjectures and on flimsy reasons? j) Whether the Lower Appellate Court could reverse the finding on issue without there being any challenge to it? RSA No.4093 of 2010 (O&M) 4 k) Whether the judgment and decrees of the Courts below are liable to be set-aside being perverse and a result of mis-reading of evidence? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. It is useful to refer to a judgment of the Hon'ble Supreme Court of India in Chief Conservator of Forests, Government of A.P. v. Collector & Ors, AIR 2003 SC 1805, wherein it has been observed as under: “In a lis dealing with the property of a State, there can be no dispute that the State is the necessary party and should be impleaded as provided in Article 300 of the Constitution and S.79 of C.P.C., viz., in the name of the State/Union of India, as the case may be, lest the suit will be bad for non-joinder of the necessary party. Every post in the hierarchy of the posts in the Government set- up, from the lowest to the highest, is not recognized as a juristic person nor can the State be treated as represented when a suit/proceeding is in the name of such offices/posts or the officers holding such posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any court or a necessary party to the lis, in any court or Tribunal. This principle does not apply to a case where an official of the Government acts as a statutory authority and sues or pursues further proceeding in its name because in that event, it will not be a suit or proceeding for or on behalf RSA No.4093 of 2010 (O&M) 5 of a State/Union of India but by the statutory authority as such.” Relying upon the aforesaid judgment, this Court in CR No.269 of 2009 (State of Punjab through the Land Acquisition Collector versus Charan Singh) decided on 6.7.2010, has observed as under: “Section 79 of the Code of Civil Procedure (hereinafter 'CPC') specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government. Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint.” Thus, assuming for the sake of argument that land in dispute belongs to Union of India, it was not sued through the competent Authority. Therefore, either way, the suit of the plaintiff-appellant was not maintainable as if assuming for the sake of argument that the land in dispute pertains to Shamlat Deh then Gram Panchayat, who was the necessary party, was not arrayed as such and in case the appellant had filed the suit against defendant No.5, considering them as the owner of the suit property then the Union of India should have been sued through the competent authority which was not done in the present case and thus, the RSA No.4093 of 2010 (O&M) 6 suit was rightly dismissed. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. October 29, 2010 (RAKESH KUMAR GARG) ps JUDGE