IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.W.P. No.13389 of 1996 .... Jugal Kishore and others. ....... Petitioners through Shri Santosh Sharma,Advocate. Versus The State of Haryana and others. ....... Respondent nos. 1 to 4 through Ms.Rajat Goyal, Assistant Advocate General, Haryana. Respondent nos.5 to 9 through Shri Sudhir Aggarwal, Advocate. (2) R.S.A. No.764 of 2005 .... Matadin and others. ...... Appellants through Shri Sudhir Aggarwal, Advocate. Versus Jugal Kishore and others. ...... Respondent nos. 1 to 3 through Shri Santosh Sharma, Advocate. None for other respondents. Date of Decision: 15.04.2009 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? C.W.P.No.13389 of 1996 -2- .... 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. By this common judgment, I propose to dispose of C.W.P.No.13389 of 1996 and R.S.A. No.764 of 2005 as common questions of law and fact are involved therein. In the writ petition, the petitioners- Jugal Kishore and two others have laid a challenge to the validity of the entries of khasra girdawaris as established by the revenue authorities by different orders which have been attached with it as Annexures P7, P10,P11 and P13. The facts may be noticed in brief. The land in dispute measuring 42 kanals 12 marlas is situated in the revenue estate of village Haliaki, Tehsil & District Gurgaon. It belonged to a big land-owner, namely Budh Ram and Hari Dutt, who was Sarpanch of the village. It was being cultivated by Bholu, predecessor-in- interest of the petitioners. The said land was declared surplus in the hands of Budh Ram and Hari dutt and as a consequence thereof, Bholu was allotted the same vide allotment letter dated 22.5.1963 and he was put in possession on 27.6.1963. A qabuliyat patta was issued under Rule 7 of the Punjab Security of Land Tenures Rules,1953 and Section 9(2)(vi) of the Punjab Security of Land Tenures Act,1953 (for short, `the 1953 Act') on 19.6.1963. The land was shown to have vested in the State of Haryana and in view of the Haryana Ceiling on Land Holdings (Prevention of Fragmentation) Act,1972 (hereinafter described as `the 1972 Act') on 24.7.1980 and Bholu C.W.P.No.13389 of 1996 -3- .... was again asked to apply for allotment of the same surplus land. An application was made on 4.12.1980 under a mistaken impression as, in fact, there was no need to apply afresh in view of the earlier conclusive allotment in favour of Bholu. The order of allotment in favour of Bholu was challenged by respondent no.5 and 6, i.e., Mata Din and Dharam Pal, before the District Collector, Gurgaon in an appeal instituted on 29.12.1980 which was dismissed on 13/18.5.1981 (Annexure P5). It was thereafter that Mata Din and Dharampal instituted Civil Suit No.889 of 25.5.1981 for declaration and permanent injunction to say that the suit land had been wrongly declared surplus without notice to them and it was pleaded that they had been tenants thereon under the wife of Budh Ram and Hari Dutt and continued as such and, therefore, the entries in the jamabandi for the year 1972-73 onwards in the name of Bholu were illegal and their names should be incorporated therein. They also moved a separate application on 22/23.6.1981 (Annexure P6) before the Assistant Collector IInd Grade, Pataudi (for brevity, `ACIIG') to say that the land in dispute was in their cultivation and, therefore, the jamabandi for the year 1977-78 and khasra girdawari for the year 1978 be corrected after spot inspection. Thereafter, ACIIG visited the spot and made a report about possession of the suit land,which led to the correction of the revenue entries in favour of Mata Din and Dharampal even though they were never in possession thereof. As a consequence, the suit which was filed for declaration and permanent injunction by Mata Din and Dharam Pal was not pursued as their objective C.W.P.No.13389 of 1996 -4- .... had been achieved by way of proceedings before the revenue authorities. That suit was accordingly dismissed in default on 3.12.1981. An appeal was preferred by Bholu against the order by which the revenue entries were corrected in favour of Mata Din and Dharam Pal, but the same was dismissed on 27.3.1986. The revision preferred by Bholu before the Commissioner, Gurgaon Division, was dismissed on 5.12.1990. A petition instituted on 14.3.1991 under Section 16 of the Punjab Land Revenue Act,1887 (for short, `1887 Act') was also dismissed by the Financial Commissioner, Government of Haryana vide order dated 6.11.1995. In the meanwhile, the petitioners were threatened with dispossession and, therefore, they filed Civil Suit No.618 of 28.6.1996 seeking a declaration and permanent injunction by pleading that they were in actual possession of the suit land and the respondents in the suit be restrained from interfering in their peaceful possession. That suit proceeded separately. It was pleaded therein by the plaintiffs that after the mutation had been sanctioned in favour of the State of Haryana on 18.8.1980, the defendants were left with no other right or interest in the suit land and consequently, the mutation in their favour could not have been changed. The orders passed by the revenue authorities by which the plea of the defendants for effecting the change in the mutation was accepted, were also challenged. It was pleaded that all the orders of the revenue authorities, i.e., of the ACIIG, Collector, Commissioner and Financial Commissioner, are liable to be set aside as they are contrary to the facts on record. A will dated 11.12.1980 by deceased-Bholu in respect C.W.P.No.13389 of 1996 -5- .... of the suit land was also set up by the plaintiffs in their favour. Matadin and others, who were impleaded as defendants in the suit, appeared and filed their separate written statements denying that the plaintiffs were ever in possession of the suit land. It was also denied that Bholu had bequeathed all his rights in the suit land in favour of the plaintiffs. The orders of the revenue authorities were said to be correct. On the pleadings of the parties, the following issues were framed in the suit:- 1. Whether the land in question was allotted to deceased Bholu the predecessor-in-interest of the plaintiffs. If so, its effect?OPP 2. Whether the deceased Bholu executed a valid will dated 11.12.1980 in favour of the plaintiff bequeathing the suit land in their favour?OPP 3. Whether the plaintiffs are the lineal descendant of the deceased Bholu and are entitled to inherit his estate?OPP 4. Whether the orders of the Revenue Officers to the effect that the plaintiffs are not in possession of the suit land are illegal,null and void, as alleged?OPP 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties. If so, its effect?OPD 7. Whether the plaintiffs are estopped by their own acts and C.W.P.No.13389 of 1996 -6- .... conduct from filing the suit?OPD 8. Whether the suit is barred by limitation?OPD 9. Whether the plaintiffs have got no locus standi or cause of action to sue?OPD 10. Relief. After appraisal of the entire evidence on record, Civil Judge (Junior Division), Gurgaon (hereinafter referred to as `the trial Court') decreed the suit and in appeal, the findings were affirmed by the Additional District Judge, Fast Track Court, Gurgaon( described hereinafter as `the First Appellate Court'). Mata Din, Dharam Pal and two others have filed R.S.A.No.764 of 2005 against the judgments and decrees of the trial Court and the First Appellate Court. Learned counsel for the appellants contended that the findings recorded by the Courts below are perverse. It was further contended that plaintiffs-Jugal Kishore and others could not have taken recourse to two separate remedies. It was submitted that the change in the revenue entries was already challenged by Jugal Kishore etc. by way of appeal and revision before the competent revenue authorities which were declined and once these findings had become final, they were precluded from challenging the same in the civil suit, as no person can be permitted to have recourse to the parallel proceedings. It was further submitted that Jugal Kishore etc. had no right on the suit land as even if it is accepted that Bholu was in possession thereof as a tenant, he had no right to will away the same being a tenant. C.W.P.No.13389 of 1996 -7- .... To support this submission, he placed reliance on the judgments of this Court in Karam Chand and another Versus Kewal Krishan and others, 1985 P.L.J. 581 (S.B.) and Chuhar Singh (deceased) and others Versus Jagat Singh and others, 1986 P.L.J. 373 (S.B.). Further, it was argued by the learned counsel for the appellants that since the findings recorded by the Financial Commissioner were not perverse, the same could not be set aside unless some gross illegality was shown. On the other hand, learned counsel for Jugal Kishore etc. contended that the findings recorded by the Courts below are perfectly correct and that the plaintiffs were very well within their right to challenge the patently illegal orders passed by the revenue authorities. It was further contended that the suit land was declared surplus in the year 1963 and that order had never been set aside. Rather, the proceedings initiated by predecessor-in-interest of Mata Din etc. had been negatived by the Courts of competent jurisdiction and in this view of the matter,once Mata Din etc. had lost right or title in the suit land which vested in the State of Haryana, the entries in their favour were obviously result of misrepresentation & fraud and, therefore, were not binding on the rights of Jugal Kishore etc. I have heard the learned counsel for the parties at some length and have gone through the whole record. The whole dispute centres around the change of revenue entries effected in favour of Mata Din etc. and against Jugal Kishore etc. It was pleaded by Jugal Kishore etc. that the tenancy right had been bequeathed to C.W.P.No.13389 of 1996 -8- .... them by Bholu while Mata din etc. claimed that the tenancy cannot be willed away. The fore-most question that has to be determined first is as to whether Mata Din etc. had any locus to question the will in favour of Jugal Kishore etc. at all or so much so whether the revenue entries could be changed in their favour to accord and acknowledge their possession? There is no denial to the fact that the suit land had been declared surplus in the year 1963 and the same had vested in the State of Haryana. There is on record the evidence to show that the suit land had been allotted in favour of Bholu and a pattanama was executed in his favour. Assuming for the sake of argument that the tenancy right could not be willed away, yet, the question would remain as to how a piece of land which was declared surplus at the hands of Budh Ram and Hari Dutt, the same would belong to Mata Din etc., who are their successors-in-interest as the same already stood mutated in favour of the State of Haryana. The entries in the revenue record in favour of Mata Din etc. were obviously the result of manipulations and fraud. It is a settled proposition of law that the tenancy rights are heritable and, therefore, the status of Jugal Kishore etc. on the suit land which was pleaded on the basis of a will, was also logical and plausible. Even if the will had not been there, they would have succeeded to the tenancy. The will, in any eventuality, was proved. Jugal Kishore etc. had, therefore, successfully shown their rightful possession over the suit land, whereas Mata Din etc. miserably failed to establish as to how the revenue entries were changed in their favour, once the suit land had C.W.P.No.13389 of 1996 -9- .... been declared surplus divesting Budh Ram and Hari Dutt of their right over it. No evidence has been produced to show that the order declaring the suit land as surplus had never been set aside in favour of Mata Din etc. In this view of the matter, the orders which were passed by the revenue authorities were patently illegal as they failed to take into account this crucial fact that the suit land having been declared surplus, no right, title or interest was left with Budh Ram and Hari Dutt on the basis of which any valid mutation could be entered in their favour. On the basis of above discussion, no substantial question of law has been shown to have arisen for determination in the Regular Second Appeal. Consequently, the writ petition is allowed and the impugned orders are set aside, while the Regular Second Appeal of Mata Din etc. is held to be devoid of any merit and is dismissed. April 15,2009 ( Mahesh Grover ) “SCM” Judge