RSA No.3129 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3129 of 1987 Date of decision: 6.4.2010 State of Punjab and another ............Appellant s Versus Phoola Singh and others .......... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Jaswinder Singh, DAG, Punjab, for the appellants. Mr. G. S. Dhaliwal, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ALOK SINGH, J. (ORAL) 1. This is the defendants' second appeal assailing judgment and decree dated 25.9.1986 passed by learned trial Court/Sub- Judge, Ist Class, Amritsar and judgment and decree dated 18.5.1987 passed by learned first Appellate Court/Addl. District Judge, Amritsar. Both the Courts below have decreed suit of the plaintiffs (herein RSA No.3129 of 1987 -2- respondents) for permanent prohibitory injunction and for mandatory injunction directing the defendants (herein appellants) to receive balance installments of the sale consideration and then to execute the conveyance deed in favour of plaintiffs/respondents. 2. The brief facts of the present case are that plaintiffs had filed suit with the allegation that plaintiffs are in possession of the land measuring 41 kanals fully described in the plaint; Land was banjar Kallar and was fit for cultivation; Plaintiffs had spent more than Rs.10,000/- over the land; Suit land was undisposed off evacuee agricultural land; Tehsildar (Sales-cum-Mahal) Tarn Taran invited applications from the occupants of such lands for the transfer of the same to them on the basis of possession from Rabi, 1978; Plaintiffs being in occupation of the aforesaid land applied for transfer of the land on the basis of their possession; SDO (Civil), Tarn Taran-cum- Sales Commissioner approved the transfer of the suit land to the plaintiffs on 22.7.1980 @ Rs.1000/- per killa and at the total price of Rs.5125/-; The amount was to be paid in installments; Plaintiffs paid all the installments except the last two installments, however all of a sudden, Tehsildar refused to receive the balance two installments and also refused to execute the conveyance deed in favour of plaintiffs saying land in dispute belongs to Central Government; It was wrongly decided to be transferred in favour of plaintiffs while authorities under the Punjab Package Deals Properties (Disposal) Act 1976 are not competent to transfer the land belonging to Central Government. 3. Defendants/appellants refuted claim of the plaintiffs; RSA No.3129 of 1987 -3- Besides all the legal pleas about the maintainability of the suit defendants took defence that suit of the plaintiffs is premature and Rehabilitation Department has no right to sell the said land to the plaintiffs. The important defense taken by defendants is that suit is bad for non-joinder of necessary party in the absence of Rehabilitation Department of the Central Government. 4. Learned trial Court decreed suit of the plaintiffs having found that plaintiffs had already paid bigger part of the sale consideration and only two installments were left to be paid. Learned trial Court further observed that plaintiffs are in occupation of the property in dispute, hence, are entitled for the transfer of the land in their favour. 5. Defendants/appellants challenged the order of learned trial Court before the first Appellate Court. Appeal of the defendants/appellants was dismissed by the first Appellate Court, although first Appellate Court has observed that land was of Central Government. 6. Feeling aggrieved from the judgments passed by both the Courts below defendants/appellants have approached this Court by way of present second appeal by invoking Section 100 C.P.C. 7. I have heard learned Counsel for the parties and perused the record. 8. In the present appeal, following substantial questions of law are required to be answered for just and fair adjudication of lis between the parties:- i) As to whether suit for specific performance RSA No.3129 of 1987 -4- of the contract directing the defendants to execute the conveyance deed after receiving balance sale consideration is maintainable in the form of suit for mandatory injunction? ii) As to whether authorities under the Punjab Package Deals Properties (Disposal) Act 1976 have any jurisdiction to transfer the land belonging to the Central Government? 9. Answer to Substantial Question of Law No.1:- The gist of the case is that defendants agreed to transfer the land in favour of plaintiffs for Rs.5125/-. Plaintiffs have paid most of the sale consideration and only two installments remained to be paid when defendants all of a sudden started saying they had no jurisdiction to transfer the land belonging to the Central Government. The relief claimed in the plaint is that defendants be directed to execute the conveyance deed in favour of plaintiffs after receiving remaining installments. Suit for mandatory injunction is maintainable under Section 39 of the Specific Relief Act which reads as under:- “39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.” 10. Suit for specific performance can be filed seeking RSA No.3129 of 1987 -5- enforcement of the contract as per the provision of Sections 10, 12, 14, 15, and 16 of the Specific Relief Act. Comparison of Section 39 of the Specific Relief Act and Sections 14 and 15 of the Specific Relief Act would reveal that scope of both the provisions is different. In a suit seeking mandatory injunction, Court is required to see the obligation and its breach and enforcement, while in a suit for specific performance Court is to see the existing valid enforceable contract. Since, plaintiffs are coming on the basis of the contract, hence, they should have filed suit for specific performance of a contract and suit for mandatory injunction is not at all maintainable. Plaintiffs are not claiming breach of an obligation rather they are claiming breach of a contract. In view of the above, substantial question of law No.1 is answered accordingly. 11. Answer to Substantial Question of Law No.2:- First Appellate Court in the impugned judgment dated 18.5.1987 in paragraphs No.7 and 8 has observed as under:- “7. After hearing the learned counsel for the parties and going through the evidence on record, I am of the considered view that this appeal has no merit. The allotment filled been brought on the record as Ex.P.1. The respondents moved an application before the Tehsildar, Tarn Taran for the allotment of the said land on the basis of possession. The application of the appellant was rejected on the ground that he failed to fulfil the condition as his possession was not from the year 1976. The respondents filed an appeal against that order before the RSA No.3129 of 1987 -6- S.D.O.(Civil) with the powers of the Sales Commissioner, . The appeal of the respondents was also dismissed. The respondents, further, filed an appeal before the Deputy Commissioner, who acts as Chief Sales Commissioner, who rejected the appeal and directed the respondents to file a fresh application on the basis of new instruction issued by the Government. The respondents filed a fresh application and the land was allotted to the plaintiff-respondents by the then Tehsildar (Sales-Cum- Mahal), Tarn Taran for a consideration of Rs.5125/- at the rate of Rs. 1000/- per killa. The respondent has also deposited the installments as per the conditions of allotment. The contention raised by the learned Government Pleader that the land is owned by the Provincial Government not by the Central Government, has no force. The Tehsildar (Sales-Cum-Mahal ) had made a not in file Ex. P1 that as per letter No. 2/505/policy part-III/G-5/7738-7828 dt. 16.3.1979 part IV Part I, the land was in the name of Central Government and subsequently it was transferred to the Punjab Government but as per above said letter, the property has been transferred in the name of Central Government. 8. From the above said note, it is clear that the land has been vested in the Central Government. The transfer of land in the name of respondents has been approved by the S.D.O.(Civil), who also acts as Sales Commissioner. The Property was of the Central Government. The Tehsildar(Sales- RSA No.3129 of 1987 -7- cum- Mahal) was competent to transfer the land in the name of the plaintiffs as per the Government Instruction.” 12. Finding of the first Appellate Court in paragraphs No.7 and 8 as quoted above is a finding of fact. Under the Punjab Package Deals Properties (Disposal) Act 1976 authorities can deal with the properties vested in the State Government and have no jurisdiction to transfer any property belonging to the Central Government. At this stage, learned Counsel for the plaintiffs/respondents argued that as per the judgment of the first Appellate Court transfer was agreed to be made under the Rehabilitation Scheme. If it is so, then also only the officers competent under the Rehabilitation Scheme could enter into a contract which was not present in the present case. Substantial question of law No.2 is answered accordingly. 13. In view of the answer to both the substantial questions of law judgments impugned herein cannot be sustained in the eye of law. 14. The appeal is allowed. Judgments and decrees of both the Courts below are set aside. The suit of the plaintiffs is dismissed with no order as to costs. ( ALOK SINGH ) 06th April, 2010 JUDGE ashish