RSA No. 3060 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3060 of 1994 Date of Decision: 01.12.09 Karam Singh son of Sh. Inder Singh, son of Sh. Attar Singh, r/o village Kaulgarh, Tehsil Balachaur, District Hoshiarpur, represented through LRs:- (i) Satpal Singh son Avtar Singh s/o Karam Singh. (ii) Devinder Singh son of Mohan Singh son of Karam Singh. ... Appellants Versus 1. Swaran Singh alias Gurmeet Singh, son of Banta alias Dhanpat, r/o village Thinda, Tehsil Garhshankar, District Hoshiarpur. 2. Kabal Singh son of Kishan Singh, son of Partap Singh, resident of village Thinda, Tehsil Garhshankar, District Hoshiarpur. 3. Central Government, through State of Punjab, through Collector, Hoshiarpur. 4. Mohinder Kaur, wife of Pritam Singh; 5. Amar Kaur, wife of Shiv Singh; 6. Gurdeep Kaur wife of Ajit Singh; 7. Surinder Kaur wife of Daljeet Singh; residents of village Begampur, Tehsil Balachaur, Distt. Hoshiarpur. 8. Smt Pritam Kaur widow of Gulzar Singh; 9. Sunder Kaur widow of Kuldip Singh; 10. Gurminder Singh; 11. Daljit Singh; RSA No. 3060 of 1994 2 12. Dilawar Singh; sons of Darshan Singh; 13. Swaran Kaur wife of Darshan Singh; 14. Sukhjinder Kaur wife of Paramjit Singh; 15. Gurbaksh Kaur wife of Amarjit Singh; 16. Piara Singh; 17. Sansar Singh; sons of Munsha Singh; all (8 to 17) Caste Jat, residents of village Begampur, Tehsil Balachaur, District Hoshiarpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.N. Moudgil, Advocate, for the appellants. Mr. M.S. Khaira, Senior Advocate, with Mr. Dharminder Singh, Advocate, for respondent No. 2. Respondent No. 3, already exparte. Names of respondents No. 1 and 4 to 16 deleted. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 04.10.94, rendered by the Court of Additional District Judge, Hoshiarpur, vide which, it partly accepted the appeal, against the judgement and decree dated 02.06.90, rendered by the Court of Sub Judge 1st Class, Garshankar, vide which, it dismissed the suit. 2. The facts, in brief, are that, Inder Singh son of Narain RSA No. 3060 of 1994 3 Singh, r/o village Chankoi, was allotted 19 kanals 4 marlas of land, in dispute, by the Central Government, as per jamabandi, for the year 1962-63. Later on, after the death of Inder Singh, the land, in dispute, was mutated, in favour of Gulzar Singh, Piara Singh and Sansar Singh sons of Munsha Singh, being his nephews. It was stated that the nephews of Inder Singh (deceased), sold the land, in dispute, to Karam Singh, plaintiff (since deceased), for a consideration of Rs. 3,000/-, vide registered sale deed dated 24.07.63. It was further stated that since then the plaintiff, had been in continuous possession of the land, in dispute. It was further stated that Karam Singh, was considering himself to be the owner of the land, in dispute, without having knowledge, about the entries, made in the revenue record. It was further stated that, later on, defendants No. 1 and 2/respondents No. 1 and 2, started denying the title of Karam Singh, over the land, in dispute, measuring 11 kanals 4 marlas, comprising khasra Nos. 32/1, 32/11, and 12/1. It was further stated that defendants No. 1 and 2, also tried to forcibly and illegally dispossess the plaintiff, from the land, in dispute, on the ground, that the same, was allotted, to defendant No. 1, by the government, which was, later on, sold by him to defendant No. 2, as per jamabandi, for the year 1982-83. It was further stated that the defendants, had no right, to interfere, into the peaceful possession of the plaintiff, over the land, in dispute. It was further stated that defendant No. 3, also started denying the title of the plaintiff, regarding khasra Nos. 32/10 and 32/1 min. It was further stated that Karam RSA No. 3060 of 1994 4 Singh, was the bonafide purchaser of the land, in dispute, for valuable consideration, and in good faith. The defendants, were many a time asked, to admit the claim of the plaintiff, over the land, in dispute, and desist from interfering into his possession, but to no avail. Ultimately, a suit for declaration and permanent injunction, was filed. 3. Defendant No. 2, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit, was time barred. It was stated that the allotment of the land, in dispute, made in the name of Inder Singh son of Narain Singh, was cancelled, vide order dated 26.08.66. It was further stated that the cancellation of allotment, was implemented, in the jamabandi, for the year 1967-68. It was further stated that after the cancellation, was made, the plaintiff, was summoned through the village Patwari, but he did not turn up.It was further stated that the possession of the land, in dispute, was taken by the Patwari, on behalf of the Central Government, and an entry, in respect thereof, was made, in the revenue record, as also jamabandi, for the year 1977-78. It was further stated that, later on, the land, in dispute, was allotted, to defendant No. 1, on 17.06.81, and possession thereof, was delivered, to him, vide Roznamcha dated 11.08.82. It was further stated that defendant No. 1, sold the allotted land, in favour of defendant No. 2, vide registered sale deed dated 21.07.82, for valuable consideration of Rs. 10,000/-. It was further stated that the mutation, was also sanctioned, in the name of defendant No. 2, and an entry, in respect RSA No. 3060 of 1994 5 thereof, was also made, in the jamabandi, for the year 1982-83. It was further stated that, in the jamabandi, for the year 1982-83, Karam Singh, was shown, to be in possession of the land, in dispute, as tenant at will, under defendant No. 1, as a result whereof, he moved an application, for correction of khasra girdawri, which was corrected, in his favour, on 10.06.86. It was further stated that since then defendant No. 2, stood recorded, to be the owner in possession of the land, in dispute. It was further stated that defendant No. 2, was the bonafide purchaser of the land, in dispute, for valuable consideration, without notice of the claim of any other person, after the cancellation of allotment, made in favour of Inder Singh son of Narain Singh. It was further stated that the plaintiff, had already been dispossessed from the land, in dispute. It was further stated that after the cancellation of allotment by the Central government, in favour of Inder Singh, and taking possession, in respect of the land, in dispute, the ownership thereof, by way of adverse possession, could not be claimed by the plaintiff. The remaining averments, were denied, being wrong. 4. Defendant No. 3, filed a separate written statement, stating therein, that after the allotment, in respect of the land, in dispute, made in favour of Inder Singh, was cancelled, the same, was allotted, to defendant No. 1. It was further stated that the possession of the plaintiff, in respect of the land, in dispute, was only permissive and the sale thereof, had been made by him, just with a view to defraud the government. It was further stated that when the allotment, was RSA No. 3060 of 1994 6 cancelled, notice was given to the plaintiff, as well, as a result whereof, he approached the revenue authorities, but in vain. It was further stated that the matter, could not, therefore, be raised, before the Civil Court. 5. Defendants No. 4 to 6, filed a separate written statement, stating therein, that in appeal, before the Sales Commissioner, they offered the plaintiff, to take back consideration, to the tune of Rs. 3,000/-. It was further stated that the suit of the plaintiff, was baseless. The remaining averments, were denied, being wrong. 6. On the pleadings of the parties, the following issues were struck:- (i) Whether the defendants have violated the lawful orders of the Court? OPP (ii) Whether the plaintiff is owner in possession of the land, in dispute? OPP (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the suit is bad for mis-joinder of defendant No. 4? OPD (v) Whether the suit is not within time? OPD (vi) Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD (vii) Whether the plaintiff is estopped by his act, conduct from filing the present suit? OPD (viii)Whether the plaintiff served a valid notice under Section 80 of CPC upon the defendant No. 3, before institution of this suit? OPP (ix) Whether the defendant No. 2 is a bonafide RSA No. 3060 of 1994 7 purchaser for value of the suit land? OPD-2 (x) If issue No. 3, is not proved, whether the plaintiff is entitled for possession of the suit land? OPP (xi) Whether this Court has no jurisdiction to entertain and try this suit? OPD (xii) Relief. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 8. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was partly accepted, by the Court of Additional District Judge, Hoshiarpur, vide judgement and decree dated 04.10.94, to the effect, that he was the owner in possession of the land, bearing khasra Nos. 32/1 (1-4) and 32/10 (8-0), but, was partly dismissed, to the effect, that he was not the owner in possession of the land, bearing khasra Nos. 32/11 (8-0) and 12/1(2-0). 9. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether without production of the cancellation order dated 09.03.66 passed by the Managing Officer, the order dated 16.02.65 setting aside the permanent RSA No. 3060 of 1994 8 rights of Gulzar Singh etc. heirs of Inder Singh, allottee or the copies thereof, and without making specific challenge, to the same, as also to the orders dated 26.08.66 and 21.08.68, the Courts could go into the question of legality and validity thereof? (ii) Whether the cancellation of allotment, in favour of the vendor of the appellant, was impermissible, under the provisions of law? (iii) Whether the Courts below, recorded perverse findings, that Swaran Singh, in whose favour, the subsequent allotment, after the cancellation of allotment, in favour of Inder Singh, was made, was competent, to alienate a part of the property, in dispute, in favour of Kabal Singh? (iv) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, that Kabal Singh, was the bonafide purchaser for valuable consideration, and without notice of any defect, in the title of his vendor, and, as such, was protected, under the provisions of Section 41 of the Transfer of Property Act? 12. The Counsel for the appellants, submitted that the land, was allotted, in favour of Inder Singh, vendor of the appellant, by the Central Government. He further submitted that after the death of Inder Singh, the land, was mutated, in favour of Gulzar Singh, Piara Singh, and Sansar Singh, as nephews of Inder Singh. He further submitted that Karam Singh, appellant, purchased the land, from the nephews of Inder Singh, in whose favour, the same, was mutated. He further submitted that Karam Singh, was, thus, bonafide purchaser of the land, in dispute, RSA No. 3060 of 1994 9 from the legal heirs of Inder Singh (deceased). He further submitted that the allotment, in favour of Inder Singh, after such a long time, could not be legally cancelled. He further submitted that, in other words, the cancellation of allotment, in favour of Inder Singh, and setting aside the permanent rights conferred upon legal heirs of Inder Singh (deceased), in the land, in dispute, was impermissible, under law. He further submitted that the suit land, could not be re-allotted, after the alleged cancellation, in favour of Swaran Singh. He further submitted that, even Kabal Singh, respondent, could not be said to be the bonafide purchaser of a part of the land, in dispute, for a valuable consideration, and in good faith. He further submitted that the first Appellate Court, was, thus, wrong in holding, that the allotment, in favour of Inder Singh, and his successors-in-interest, was rightly cancelled, and the land, in dispute, was rightly allotted, in favour of Swaran Singh. He further submitted that the first Appellate Court, was also wrong, in coming to the conclusion, that Kabal Singh, was the bonafide purchaser of a part of the land, in dispute. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 13. On the other hand, the Counsel for the respondent, submitted that the first Appellate Court, was right, in holding, that the authority, which allotted the land, was also competent, to cancel the same, if, later on, some defect, in the allotment, was found. He further submitted that, in the written statement, it was, in clear-cut terms stated RSA No. 3060 of 1994 10 that, vide order dated 26.08.66, allotment, which was made, in favour of Inder Singh, had been cancelled, but, the same, was not challenged, by the plaintiff, either generally or in specific terms, in the plaint. He further submitted that, since neither the cancellation order, nor copy thereof, was got produced, nor any specific challenge, to the same, nor to the subsequent orders DW1/A and DW1/B, was made, by the plaintiff, and, as such, the legality and validity thereof, could not be gone into, by the Courts. He further submitted that the competent authority, after cancelling the allotment, in favour of Inder Singh, rightly re-allotted the land, in favour of Swaran Singh. He further submitted that Kabal Singh, was rightly held, to be the bonfide purchaser for valuable consideration, in good-faith, and without any notice of defect, in the title of his vendor. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, deserves to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere RSA No. 3060 of 1994 11 with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgement of the first Appellate Court, is confined only to the hearing of substantial questions of law. It is evident from exhibit DW2/A, dated 26.08.66, copy of the order, passed by the Assistant Registrar-cum-Managing Officer that the allotment made in favour of Inder Singh, allottee, was cancelled on 09.03.66. It is further evident from this order that the permanent rights of the land granted in favour of Gulzar etc. the heirs of Inder Singh (deceased) were set aside, vide order dated 16.02.65. Exhibit DW1/B is the order dated 28.08.68, vide which, the review petition filed by Inder Singh, through Piara Singh, against the order dated 16.02.65, vide which, the permanent rights granted in favour of Gulzar Singh etc. heirs of Inder Singh, allottee was dismissed, by the Chief Settlement Commissioner, Punjab Rehabilitation Department, Jalandhar. First coming to the factum, as to whether, without getting produced the original cancellation order dated 09.03.66 and the order dated 16.02.65, vide which, the permanent rights conferred upon Gulzar Singh etc. heirs of Inder Singh, or copies thereof, and without proof of the same, and without specific challenge, to the same, as also to the orders dated 26.08.66 and 28.08.68, DW1/A and DW1/B respectively, the Courts, could go into the legality and validity thereof, RSA No. 3060 of 1994 12 or not it may be stated here that the answer to the same, is in the negative. In the written statement, it was, in clear-cut terms stated, by the defendants, that the allotment, which was made, in favour of Inder Singh, was cancelled, vide order dated 26.08.66 (in fact 09.03.66). The legal heirs of Inder Singh, allottee, after his death were very much in the know of the aforesaid orders, as they challenged the same before the concerned Authorities, under the relevant Act. No effort, was made, by the plaintiff, to get produced the cancellation order dated 09.03.66, and the order dated 16.02.65, or the copies thereof, and prove the same, so that, this Court, could go into the legality and validity thereof. Even no specific challenge, was made to the legality and validity of the aforesaid four (4) orders. In my considered opinion, in the absence of production of the original cancellation order dated 09.03.66 and the order dated 16.02.65, or copies thereof, and proof of the same and without specific challenge, to the legality and validity of the aforesaid four orders, having been made, by the plaintiff, the Courts could not go into the legality or validity thereof. It is only after going through the contents of the orders, affecting the rights of a party, if the same are produced and proved, and specific challenge to the same, is made, that the Court could come to the conclusion, as to whether the same are legal or valid or not. The Court could not adjudicate upon the legality and validity of the orders, in the air. No doubt, reliance, was placed, by the Counsel for the appellant, on Thakar Singh Vs. State of Punjab, 2009(2), RCR (Civil), 778 and Mukhtiar Singh and others Vs. Hardit RSA No. 3060 of 1994 13 Singh and others, 2005(4), RCR (Civil), 556, in support of his contention, that once the allotment, was made, it could not be cancelled. In the absence of challenge to the legality and validity of the aforesaid orders, reliance, on the aforesaid cases, is misconceived. No help, therefore, from the ratio of law, laid down, in the aforesaid cases, can be drawn, by the Counsel for the appellants. The submission of the Counsel for the appellants, in this regard, for the reasons stated above, is rejected. 15. The next question, that falls for consideration, is, as to whether, Karam Singh, who purchased the land, from Gulzar Singh etc. heirs of Inder Singh, could be said to be the bonafide purchaser, for valuable consideration without knowledge of cancellation of allotment. The original allotment, in favour of Inder Singh (now deceased), was made somewhere, in the year 1962. After the death of Inder Singh, the land, in dispute, was mutated, in the names of his four nephews. Karam Singh, plaintiff (now deceased), purchased the land, vide sale deed P1, on 29.07.63, from them. Since the name of Inder Singh, was reflected, in the jamabandi P2, for the year 1962-63, as owner of the land, in dispute, after making bonafide enquiries, like a prudent person, Karam Singh (since deceased), purchased the same. The order of cancellation was made on 09.03.66, that is much after the purchase of land, by Karam Singh. The first Appellate Court, was right in holding, that Karam Singh, was the bonafide purchaser, for valuable consideration, without notice of cancellation of allotment and sale, in his favour, was RSA No. 3060 of 1994 14 protected under Section 41 of the Transfer of Property Act. It was for the first time, vide order dated 26.08.66, exhibit DW1/B, that the cancelled area was ordered to be retrieved. Thereafter, the implementation of the order of cancellation was made, vide DW3/A, copy of the report, in the roznamcha dated 15.10.68, and the possession thereof was taken by the Central government. 16. After the implementation of cancellation order, the land was allotted to Swaran Singh, allottee. Swaran Singh, sold the land, bearing khasra Nos. 32/11(8-0) and 12/1(2-0), in favour of Kabal Singh. After the cancellation of allotment, in favour of Inder Singh, entry, in the Roznamcha dated 15.10.68, exhibit DW3/A, was made, and possession, was taken by the Central government. In the jamabandi, for the year 1977-78, exhibit D5, Central government was recorded as owner of the land. In the column of cultivation, Karam Singh, was shown as gair marusi. There is a note, in the remarks column, in red ink, that the land bearing khasra No. 32/11 (8-0) and 32/12/1 (2-0) was allotted to Swaran Singh, on 17.06.81, and mutation was sanctioned in his favour. In the jamabandi, for the year 1982-83, exhibit D4, Swaran Singh, was recorded as owner of the land, in dispute. Karam Singh, did not get entered his name, as owner of the land, in question, in the revenue record, after the purchase thereof. Under these circumstances, the entry in the name of Swaran Singh, as owner, in D4, jamabandi, was a sufficient guarantee, to Kabal Singh, defendant/vendee, to purchase the same. He purchased the aforesaid RSA No. 3060 of 1994 15 land vide sale deed dated 21.07.82, exhibit DW4/A. He could only go through the entries, in the revenue record, and after satisfying himself, purchased the land, in dispute, bearing khasra Nos. 32/11(8-0) and 12/1 (2-0). The mere fact, that the name of Karam Singh, was entered, in the column of possession, as gair marusi, in the aforesaid jamabandis, could not be said to be sufficient, to put Kabal Singh, on alert, that his vendor Swaran Singh, was not the owner of the property, in dispute. The first Appellate Court, was, thus, right in holding, that Kabal Singh, was the bonafide purchaser of the land, bearing khasra Nos. 32/11(8-0) and 12/1(2-0) for valuable consideration, in good faith, and without notice of any defect, in the title of Swaran Singh. The first Appellate Court, was also right, in holding, that Karam Singh, plaintiff (now deceased), would remain owner in possession of the land bearing khasra Nos. 32/1(1-4) and 32/10(8-0). The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 17. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be upheld. 18. The substantial questions of law, depicted above, are answered, in the manner, indicated hereinabove. RSA No. 3060 of 1994 16 19. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 01.12.09 (SHAM SUNDER) Amodh JUDGE