RSA No.673 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.673 of 1988 Date of Decision: 23.03.2010 Uttam Chand & Ors. ..Appellants Vs. Bhagwan Dass (dead) through LRs & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ashok Singla & Mr.Ravish Bansal, Advocates, for the appellants. Mr.Munish Gupta, Advocate, for respondent No.1. Mr.N.L.Sammi, Advocate, for respondent No.6. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) CM No.234-C of 2009 Civil Misc. is allowed, the order dated 11.1.2010 is recalled RSA No.673 of 1988 2 and the appeal is restored to its original number. RSA No.673 of 1988 The plaintiff/appellants have filed this appeal against the judgment and decree dated 23.12.1987, passed by the learned lower appellate court, vide which suit for possession filed by the plaintiff/appellants was dismissed. The plaintiff/appellants filed a suit for possession of the suit land, on the pleadings, that the suit land was allotted on reserved sale price of Rs.450/- (Rupees four hundred and fifty only) per standard acres, to Mangla Ram in the year 1950 by the Managing Officer, Rajpura Township. Part payment of the sale price was deposited by Mangla Ram, but thereafter he died in the year 1964, leaving behind the plaintiffs who are his legal heirs being the sons. Shri Mangla Ram was in cultivating possession of the suit land since his allotment till the date of his death. Balance sale price was deposited by the plaintiffs, and a sale deed was issued in their names on 22.12.1966. Defendants No.1 and 2, filed a suit for declaration on 4.7.1964 claiming themselves to be the owners of the half share of suit land, but during the pendency of the suit, they admitted the claim of the plaintiffs, and suit filed by defendants No.1 and 2 was dismissed on 28.7.1964. In the revision petition, filed by defendants No.1 to 4 against grant of Sanad to the plaintiffs, before the Chief Settlement Commissioner, Jalandhar sale deed in the name of the plaintiffs, was set aside on the RSA No.673 of 1988 3 ground that it was issued without determining the legal heirs of Mangla Ram, it was ordered to be issued after determining the legal heirs. The case of the plaintiff/appellants was that defendants No.1 to 4 in connivance with defendants No.5 to 7, were trying to forcibly dispossess the plaintiffs, from the suit land. In view of the dispute between the parties suit land was attached, and possession was taken by the Receiver under section 145 of the Code of Criminal Procedure, which was finally decided on 7.6.1973, holding therein that the defendants were in possession, before attachment and the possession was ordered to be handed back to the defendant/respondents. Order passed under section 145 of the Code of Criminal Procedure, was said to be illegal, inoperative and not binding on the plaintiffs. It was the case of the plaintiff/appellants that the defendants were wrongly put in possession, though they had no concern, with the suit land. Suit was contested by the defendant/respondents, wherein averments made in the plaint were denied. Stand taken by the defendant/respondents, was that Refugees of Bhawalpur State were allotted land for their livelihood, and each family was allotted 57-58 bighas of land which consisted of about 5-6 members. Suit land was allotted to Mangla by taking his family members to be 20. Suit land was allotted in the name of Mangla Ram, being the head of the family. The case of the defendant/respondents, was that all the 20 persons were owners in equal shares It was also the stand of the RSA No.673 of 1988 4 defendants, that earlier suit was withdrawn and the claim of the plaintiff/appellants was not admitted in the said suit. In the replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether Mangla Ram was allotted land in dispute as alleged in the plaint? OPP 2. Whether Mangla Ram was the sole owner of the suit property as alleged? OPP 3. Whether the plaintiffs are heirs and successors of Mangla Ram and as such, they are entitled to succeed to the property in dispute? OPP 4. Whether the order dated 7.6.1973 passed by the Executive Magistrate Ist Class, Patiala under section 145 Cr.PC was illegal, inoperative and unbinding on the possessory and ownership rights of the plaintiffs over the suit land? OPP 5. Whether the plaintiffs were in possession of the suit land before attachment under section 145 Cr.PC? OPP 6. Whether the defendants cannot succeed to the suit land after Mangla Ram? OPP (Objected to regarding onus). 7. Whether the plaintiffs have no locus standi to file the present suit? OPD RSA No.673 of 1988 5 8. Relief. In order to prove the case plaintiffs examined Kishan Chand PW 1, Kaura Ram PW2, Narain Dass Divana PW3, Ram Ditta PW3, Bhagwan Dass PW 4, Ram Chand PW 5 and tendered in evidence report of Excerpt Clerk Ex.P.1, copy of Khatoni in the name of Mangal Ram Ex.P. 2, Haq-darBar in the name of Mangla Ram Ex.P.3, copy of minutes book of consolidation of holding Ex.P.4, copy of jamabandi for the year 1960-61, in the of Mangla Ram Ex.P.5, copy of jamabandi for the year 1961-62 in the name of Mangla Ram Ex.P.6, copy of conveyance deed dated 28.12.66 in the name of Mool Chand, Uttam Chand, Leela Ram and Ram Chand sons of Mangla Ram Ex.P.7, copy of mutation of sale by Mangla Ram Ex.P.8, copy of mutation of sale by Mangla Ram Ex.P.9,. Copy of jamabandi for the year 1966-67 in the name of Mool Chand and others sons of Mangla Ram Ex.P.10, copy of jamabandi for the year 1971-72 Ex.P.11, copy of mutation of sale b y Mool Chand and others Ex.P.12, copy of judgment of High Court in CWP 3404 of 1970 dated 29.4.1980 Ex.P.13, copy of application dated 27.7.1964 Ex.PW 3/A of Tara Ram son of Gela Ram for getting the suit declared dismissed as withdrawn in case No.267 of 1964, On the other hand, defendants examined Chela Ram DW 1, Dila Chand DW 2, Tharia Ram DW 3, Hari Chand Patwari DW 4, Gurmukh Singh DW 5, Pritam Dass DW 6, Ram Ditta son of Chhata Ram DW 7, Ram Ditta son of Lakhu Ram DW 8, Bhagwan Dass DW 9, Ajit Singh DW 10, and proved on record copy judgment Ex.D.1, copy of decree sheet Ex.D.2, copy of judgment Erx.D.3, copy of judgment Ex.D.4, copy of judgment RSA No.673 of 1988 6 Ex.D.5, copy of khasra girdawri for the year 1965 Ex.D.6, copy of khasra girdawari for the year 1982-83 Ex.D.7, copy of order of Chief Settlement Commissioner Ex.D.8, copy of order regarding stay Ex.D.9, copy of order of SDM Ex.D.10, copy of Jamabandi for the year 1981-82 Ex.D.11, copy of mutation No.1195 Ex.D.12, copy of judgment Ex.D.13, licence of municipal committee regarding Raries of the plaintiffs Ex.DW 13/A to Ex.D.20, copy of Rojnamcha report No.198 of 28.1.1983 Ex.DW 4/A, copy of Rojnamcha report No.409 of 9.6.73 by which possession was restored to the defendants Ex.DW 4/8, copy list of members of the family as per entry in the PEPSU Township Development Board register of Mangla Ram Ex.DW 5/1, photo of MangLa Ram as head of the family Ex.DW 5/2, copy of policy letter of Secretary Government of India to Administrator of Rajpura Township Development Board Ex.DW 5/3, Ex/DW 5/4; copy of compromise in Urdu Ex.DW 8/A, etc. Punjabi translation Ex DW 8/A between Mangla Ram and Gela Ram. Defendants No.6 and 7 were proceeded ex parte on 11.6.1974 as they failed to appear despite service. Issue No.6 was taken up first, wherein learned trial court held, that Bela Ram who was predecessor-in-interest of the plaintiffs and defendants, had two sons namely Gela Ram and Mangla Ram. Mangla Ram got the land allotted in his name, as head of the family being refugee repatriated to India from Bhawalpur. The defendant/respondents were trying to get their share in the land in dispute since July, 1964. Suit No.267 of 4.7.1964 was filed in the court of Sub Judge Ist Class, Rajpura which was RSA No.673 of 1988 7 decided on 28.7.1964. This suit was decided on the statements, and the applications of Chhata Ram and Tara Ram, who were impleaded as defendants and plaintiffs in the suit. Suit was dismissed as withdrawn, when Chhata Ram and Tara Ram filed applications Ex.PW3/A and PW 3/B, and also made a statement in the court that they had no interest, whatsoever, in the suit land. Suit was dismissed as withdrawn on 28.7.1964. Defendants/respondents also filed a writ petition in this High Court in the year 1970 which was decided on 29.4.1980. Writ petition was dismissed by this court, by recording a finding that the defendant/respondents, had given up their claim to the land in question by two applications Ex.R.1 and R.2. This Court was further pleased to hold, that even if the order of civil court was void or of no legal effect or value, but still it could not be said that the statements of relinquishment made by the defendants in the two above mentioned applications, could not be used against them. Learned trial court decided issue No.6, against the defendant/respondents by holding that the defendants could not succeed to the suit land, after statements of relinquishment. On issues No.1 and 3, learned trial court held, that the defendants were the legal representatives of Gela Ram, whereas plaintiffs were legal representatives of Mangla Ram. Since both the sons of Gela Ram namely Chhata Ram and Tara Ram had relinquished their claim in the land in dispute, there was no interest of legal representatives left in the land. The legal representatives of Mangla Ram were, therefore, entitled to succeed to RSA No.673 of 1988 8 the property in dispute. On issue No.2, learned trial court held that though originally Mangla Ram, was not a sole owner of the suit property but the statements of Chhata Ram and Tara Ram resulted in making Mangla Ram, to be the sole owner, as they relinquished their claim in the suit property. On issue No.1, it was held that the suit land was allotted in the name of Mangla Ram rightly, and issue No.1 was also decided in favour of the plaintiffs. Issues No.4 and 5 were not pressed and therefore, decided against the plaintiffs. Similarly, issue No.7 was not pressed, therefore, decided against the defendants. In view of the findings recorded above, suit filed by the plaintiffs/appellants was decreed with costs. Learned lower appellate court, in appeal, recorded a finding that Mangla Ram and Gela Ram, were two refugees from Bhawalpur. As per the letter Mark-A dated 19.11.1949 issued by the Ministry of Rehabilitation Government of India, it was decided that 10,000 acres of evacuee land near Ropar, would be set apart for the benefit of Bhawalpuri displaced persons, who were to be resettled in adjoining area of Rajpura. It may be mentioned here that letter Mark-A, was not proved in accordance with law, therefore, prima facie cannot be read in evidence. Learned lower appellate court thereafter referred to letter mark- A, which read as under:- “i) Allotment of land should be confined only to those RSA No.673 of 1988 9 displaced persons from Bhawalpur who are/entitled to allotment of land in East Punjab or Pepsu under the quasi- permanent allotment scheme. ii) The unit of allotment will be 8 acres of Chahi and 12 acres of Barani land per family of 5 to 6 persons. This unit may be increased in the case of families with a larger number of members, up to a maximum of 12 acres of Chahi and 18 acres of Barani land. The banjar and gair- mumkin land in the villages may be utilized as shamlat land. iii) The allotment will be on a temporary basis.” Learned lower appellate court also took note of the letter Ex.DW5/A dated 19.4.1950, wherein it was mentioned that the allotment would be made family-wise. Ex.DW 5/1, was a list of members of the family of Mangla Ram and Gela Ram,, where family members were shown 20 in number. Learned lower appellate court, on the basis of letters referred to above, came to the conclusion that a family consisting of 5 to 6 persons was to be allotted 8 acres of chahi or 12 acres of Barani land, whereas this family was allotted 12 acres of land, as it consisted of 20 members. The court also held that in the agreement dated 2.7.1961, it was admitted by Mangla Ram, that land measuring 86 bighas situated in village Faridpur was not allotted to him individually, but as a head of family i.e. his own family RSA No.673 of 1988 10 and family of Gela Ram, and that family of Gela Ram was owner of ½ share of land allotted, and furthermore, that they were cultivating the suit land as per their shares and have also deposited Zare Panjam. Learned court also took note of one suit filed by Hari Singh and his wife Smt. Joginder Kaur against Ranjit Singh and Shamsher Singh claiming share. The said suit was decreed. Appeal also failed and in the regular second appeal judgment and decree was upheld. The suit and judgments were totally irrelevant, to the matter in issue, as it was not inter se but still on the basis of findings recorded in the said judgment, learned lower appellate court came to the conclusion, that the allotment was not made in favour of Mangla Ram individually, but in favour of family consisting of 20 members headed by Mangla Ram. Each member was, therefore, entitled to equal share in the property. Learned lower appellate court took note of the fact that Chhata Ram and Tara Ram had instituted a suit for declaration on 4.7.1964, claiming that they had ½ share in the suit land, but they made application/statements admitting therein that the sons of Mangla Ram were sole owners of the suit land, by admitting that they had no right in the suit land. Suit was dismissed on the statements. Learned lower appellate court, however, held that said suit was without jurisdiction as the Civil Court, was not competent to adjudicate the dispute. Therefore, the statements made by the Chhata Ram and Tara Ram, were of no consequence, as the property formed part of compensation pool in view of Section 14 of the Displaced Persons (Compensation and RSA No.673 of 1988 11 Rehabilitation) Act, 1954, as no sale certificate was issued till date. This finding is contrary to judgment of Hon'ble High Court in the suit filed by the defendant/respondents. Learned lower appellate court came to the conclusion that the sale certificate issued on 22.12.1966 in favour of son of Uttam Chand was set aside on 5.4.1966. Learned lower appellate court accepted the contention, that because of setting aside of conveyance deed dated 22.12.1968, property remained as part of compensation pool, and the Civil Court did not have jurisdiction to deal with the property, being part of the compensation pool. This finding again on the face of it is not sustainable, as the dispute was not with regard to the allotment, or with the authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 or under the Administration Evacuee Property Act but was inter se dispute qua their right inter se, which could only be adjudicated by the Civil Court. The learned lower appellate court, thereafter upheld the order, passed by the Chief Settlement Commissioner, Punjab holding therein that as there was dispute and question of title was involved, therefore, the matter was required to be adjudicated by the Civil Court, also goes against the findings recorded. The learned lower appellate court, did not accept the contention, that the claim was barred by res judicata by holding that the High Court had not decided the question concerning tittle between Uttam Chand etc., on the one hand, and Chhata Ram, on the other hand, as the RSA No.673 of 1988 12 High Court dismissed the writ, in view of the fact that the right was given up in the civil suit, though the civil Court had no jurisdiction to try the suit. The court also did not accept the contention of the learned counsel for the appellant/plaintiffs, that Mangla Ram had become owner of the property in the year 1964 when the entire sale price was paid and thereafter the issuance of conveyance, was only ministerial act. Judgment of the Hon'ble Supreme Court in the case of Bishan Paul Vs. Mothu Ram AIR 1965 SC 1994, was distinguished by holding, that in the case in hand Mangla Ram had not purchased the property in open auction, therefore, the judgment was not applicable to the facts of this case. Plea of the plaintiff/appellants, that no reliance could be placed on the letter mark-A and letter DW 5/3, as these were not the certified copies, was also not accepted, by recording a finding that the letter came from the record of PEPSU Development Board and could not be doubted. The learned lower appellate court held that two families, were allotted land in equal share and that Uttam Chand etc. were co- sharer/allottees with Chhata Ram and Tara Ram etc., and the possession of Chhata Ram and Tara Ram, was on behalf of entire body of co- sharer/allottees, and that the plaintiffs had no locus standi to sue for possession as co-sharer/allottees. The right of the defendants was not held to be barred by res judicata, as the question of ownership had not arisen prior to issuance of conveyance deed. The appeal, was partly allowed and decree for joint possession, RSA No.673 of 1988 13 was passed in favour of Uttam Chand etc. against Chhata Ram etc., in respect of 80 kanals of land, holding them to be co-share/allottees by determining their share as half. Direction was also issued for issuance of conveyance deed, in their favour, to the exclusion of Chhata Ram etc. heir of Mangla Ram. Uttam Chand etc. were not held entitled to any property, as they had already sold in excess of their share in total allotment. This finding again on the face of it is contrary to the finding recorded in the body of the judgment, as on the one hand, learned lower appellate court was pleased to hold that no valid title had passed on to the plaintiffs, in absence of conveyance deed, on the other hand, sale made of the allotted land were upheld. Mr Ashok Singla, learned counsel for the appellant contended that this appeal raises the following substantial question of law for consideration by this court: 1. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of oral and documentary evidence on record and therefore, perverse? In support of the substantial question of law referred to above, learned counsel for the appellants contended, that the evidence on record showed, that the allotment was made in favour of Mangla Ram to the exclusion of Gela Ram, there was no evidence worth the name to hold that Gela Ram also had half share in the property, as held by the learned lower RSA No.673 of 1988 14 appellate court. The contention of the learned counsel for the appellants further was, that it was proved that the right, if any, was given up by the predecessor-in-interest of the defendants, in the suit previously filed. The factum of giving up right in the property was upheld by this court, in CWP No.3404 of 1970 decided on 29.4.1980, Ex.P.13, wherein this Court was pleased to lay down as under:- “ Now the petitioners impugned the order Annexure G passed by the chief Settlement Commissioner on the ground that he himself was competent to decide the matter or the dispute between the parties with regard to their claims of allotment of land in equal shares between Gela Ram and Mangla Ram and he was not competent to refer the parties to the civil Court. As a necessary corollary to this argument, another argument raised is that order of the civil Court Annexure R-4 is without jurisdiction and has to be treated as non est in the eye of law. In support of this submission, the learned counsel for the petitioners relies on a Division Bench judgment of this court in Darbara Singh V. The Union of India and another 1972 PLR 381, wherein it has been held that section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, clearly lays down that the decision with regard to the matters which are within the jurisdiction of the authorities under the said act shall be final and shall not be RSA No.673 of 1988 15 called in question in any Court and further in view of the provisions of section 36 of the said Act, the civil Court would have no jurisdiction in the matter. Without going into this aspect of the matter and even assuming for the sake of argument that the civil Court had no jurisdiction to decide the claim of the parties with regard to the allotment of land in question in equal shares between Mangla Ram and Gela Ram, I feel the petitioners are not entitled to the discretionary relief under Article 226 of the Constitution of India from this court for the simple reason that they have already given up their claim to the land in question vide their two appellations Annexures R.1 and R.2. The judgment and order of the Civil Court may be void or of no legal effect or value but still it cannot be said that the statements or the relinquishments made by the petitioners vide their two applications referred to above, cannot be used against them and more so in these proceedings under Article 226 of the Constitution. In this view of the matter I do not find any merit in this petition and dismissed the same with no order as to costs.” It was also the contention of the learned counsel for the appellants, that the learned lower appellate court misinterpreted the judgment of this court in RSA No.999 of 1973 decided on 8.11.1982, for the reason that it was not inter se between the parties and therefore, could have RSA No.673 of 1988 16 no applicability in view of the decision of this High Court inter se between the parties as reproduced above. It was also the contention of the learned counsel for the appellants, that the judgment in regular second appeal No.999 of 1973, Ex.D.3 was based on facts of the said case, as the finding recorded in that judgment reads as under:- “ The first question that arises for determination is as to whether the plaintiff/respondents were the owners of half of the property. The learned counsel for the appellant has urged that in the mutation and the Jamabandis Ranjit Singh was shown as owner of the property and, therefore the inference drawn by the Courts below are incorrect. I regret my inability to accept the contention. Both the Courts, after considering whole of the evidence, came to the conclusion that the plaintiffs were the owners of half of the property. It has not been shown that the aforesaid finding is vitiated. Otherwise also, Ranjit Singh when he appeared in the witness box, admitted in his statement that the land was allotted to all the members of the family. In view of the statement, no other inference can be drawn except that the plaintiff/respondents were owners of half share of the property. Consequently, I affirm the finding of the trial court.” It was also the contention of the learned counsel for the appellants,