R.S.A.No. 477 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 477 of 1996 Date of decision: 21.7. 2009 Om Parkash and others ......Appellants Versus Shyam Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.C.Dhiman, Advocate, for the appellants. Mr.S.S.Dinarpur, Advocate, for the respondent. **** SABINA, J. Plaintiff Shyam Lal filed a suit for permanent injunction restraining the defendants from interfering in his peaceful possession over the suit land. The suit of the plaintiff was decreed by the Sub Judge, Ist Class, Jagadhari vide judgment and decree dated 26.9.1994 In appeal, the said judgment and decree were upheld by the Additional District Judge, Jagadhari vide judgment and decree dated 21.11.1995. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 and 4 of its judgment, are as under:- “3. Shorn of unnecessary verbiage the case of Sham Lal plaintiff is that he has alleged himself in cultivating R.S.A.No. 477 of 1996 2 possession of the suit land as tenant gairmuasi since 1981, but the defendant has no concern with the suit land and he is bent upon dispossessing the plaintiff. So with these averments, suit was instituted. 4. Defendant/ Nanak contested the suit inter alia on the grounds of maintainability, locus standi, collusion of the plaintiff with the previous owners namely Brij Mohan, and Smt. Kampawati, it is also pleaded that previously Brij Mohan and Kampawati, son and widow of Lal Chand, were owners in possession of the land in dispute and were big landlords. Defendant Nanak was an ejected tenant. In the year 1978, the suit land was allotted to the defendant as the suit land before 1978 had vested in the Haryana State. Brij Mohan Kampawati got instituted civil suit from Kusum Lata etc. against the defendant and some other persons. But those suits were dismissed upto Hon’ble Supreme Court. Then defendant moved an application to the S.D.O.(Civil) Collector Agrarian Jagadhri, for getting the possession of the suit land, consequently the suit land was allotted to the defendant. It is also pleaded that symbolic possession was delivered to the defendant on 25.12.90 as some crops were standing on the suit land. It is denied that the plaintiff is in possession of the suit land as tenant. The suit land R.S.A.No. 477 of 1996 3 vested in the State of Haryana in the year 1974, so its previous owner namely Brij Mohan and Kampawati had no right to create any tenancy over the suit land. The revenue entries made in the name of the plaintiff are illegal, void and factually wrong and the same are not binding upon the rights of the defendant. It is also submitted that the plaintiff is already out of possession and his suit as such merits dismissal with special costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is in possessiion over the suit land as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the defendant is entitled to special costs under Section 35-A CPC? OPD 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. The present case has its peculiar facts. Unfortunately defendant Nank Chand, who was allotted the land in question has been fighting litigation after litigation. The substantial question of law involved in this case is R.S.A.No. 477 of 1996 4 “ whether the Courts below have failed to appreciate the evidence/proved facts on record and the findings of the Courts below are perverse?” Plaintiff-Shyam Lal had filed a suit for permanent injunction restraining defendant Nanak (now represented through legal representatives) from interfering in his peaceful possession. Khasra Number in dispute is 55//2/3/2 situated in village Chhappar Mansurpur. From perusal of the documents on record, it transpires that Lal Chand was a big land owner. He died on 6.4.1952 before commencement of the Punjab Security of Land Tenures Act, 1953. He was survived by his widow Kampawati, son Brij Mohan and four daughters namely Kaushlya Devi, Kusum Lata, Saroj (since deceased) and Swaran Kanta. The land owned by Lal Chand was declared surplus and thereafter it vested in the State. Section 12 of the Haryana Ceiling on Lands Holdings Act, 1972 reads as under:- Vesting of Surplus area:- (1) The surplus area of a land owner shall (from the date on which it is declared as such shall be deemed to have been acquired by the State Government for a public purpose) (Vide Act No.17 of 1976) and all rights, title and interest (including the contingent interest, if any, recognised by any law, custom or usage for the time being in force) of all persons in such R.S.A.No. 477 of 1996 5 area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance. Provided that where any land within the permissible are of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it. (2) The right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished. (3) The area declared surplus or tenant's permissible area under the Punjab law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which day shall be deemed to have vested in the State Government with effect from the date of such declaration (Vide Act No.40 of 1976) (4) For the purpose of determining the surplus area under this Act, any judgment, decree or order or other authority, obtained after the appointed day and R.S.A.No. 477 of 1996 6 having the effect of deminishing the surplus area shall be ignored.” The case of defendant Nanak is that he was allotted the land, which was declared surplus including the suit land being a tenant vide order dated 1.9.1978. Kaushlya Devi, Kusum Lata and Swaran Kanta, daughters of Lal Chand, filed a suit for permanent injunction against Nanak, Kampawati and Brij Mohan. The said suit bearing No.647 dated 21.10.1978 was dismissed on 25.1.1983 (Ex.D-1). Appeal filed against the said decree was dismissed by Additional District Judge, Ambala vide judgment and decree dated 11.1.1985 ( Ex.D-2 ). A perusal of Ex.D-3, copy of mutation, reveals that the suit land in question vested in the State as it had been declared surplus. The possession of the plaintiff is reflected in the same as Gair Marusi and Kaushalya Devi, wife of Shayam Lal is described as owner of the said property. Since the possession of the allotted land, which was declared surplus, was not handed over to the tenants including Nanak, they filed Civil Writ Petition bearing No.4015 of 1990 in this Court. While disposing of the said writ petition, this Court had passed the following order on 26.4.1990:- “It is not in dispute that the order of allotment of the land in question was made in favour of the petitioners on September 1, 1978. For reasons which are not very clear, the possession of the same however was not delivered to them. At this stage this delivery of R.S.A.No. 477 of 1996 7 possession in their favour is sought to be resisted on the ground that the respondent landlords have already moved a review application for the correction of certain mistakes in the orders dated 28th October, 1974 and Ist September, 1978 declaring the land as surplus in their hands. According to the learned counsel, the Assistant Collector Ist Grade has even made some recommendation to the higher authorities for permission to review those orders. Be that as it may the fact remains that allotment of the land in favour of the petitioners is still intact and they are entitled to secure possession of the land be delivered to the petitioners within one month from today. The petition stands disposed of as indicated above” Learned counsel for the appellants has submitted that the appellants have got the possession of the remaining land allotted to them except the land described in Khasra number in dispute in the present case. Both the Courts below have been influenced by the fact that since Shyam Lal was in possession of the suit land, he could not be dis-possessed from the same except in due course of law. Unfortunately, both the Courts below have lost sight of the fact that the allottee was seeking possession of the land allotted to him in due course of law. Despite the fact that in the writ petition filed by the R.S.A.No. 477 of 1996 8 allottee, a specific direction was issued by this Court that the possession of the land be delivered to them within one month yet the possession of khasra number in question has not been handed over to the allottee. The allottee was taking possession of the khasra number in dispute allotted to him as per law. The land in question after it was declared surplus vested in the State and hence, possession of the plaintiff Shyam Lal over the land in dispute was illegal. He could not continue to be a tenant under Kaushlya Devi as she had no concern with the suit land. In the plaint, the case of the plaintiff was that he was tenant over the land in dispute but however, when he appeared in the witness box as PW-4 he took up a different stand that in fact, he had purchased the suit land for Rs.2,000/-. However, no such sale deed was produced on record by the plaintiff. Thus, it is evident that the allottee, who had been allotted the land in question, which was declared surplus in the hands of big owner has been fighting litigation since long and despite the order passed by this Court on 26.4.1990, he has not been able to get the possession of the land. Rather the plaintiff has obstructed the due process of law by filing the suit. In these circumstances, both the Courts below had erred in decreeing the suit of the plaintiff Shayam Lal. The findings of the Courts below are perverse in the facts and circumstances of the present case. Hence, the substantial question of law that arises in R.S.A.No. 477 of 1996 9 this case is answered accordingly. Consequently, this appeal is allowed. The impugned judgments and decrees of the Courts below are set aside and the suit of the plaintiff is dismissed with costs. (SABINA) JUDGE July 21, 2009 anita