RSA No.344 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.344 of 1989 (O&M) Date of Decision: 14.05.2009 Madan Sain @ Kulwant Singh ..Appellant Vs. Matu Ram (dead through L.Rs.) & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.K.Pipat, Sr. Advocate, with Mr.Naresh Kaushal, Advocate, for the appellant. Mr.M.L.Sharma, Advocate, for the respondents. --- Vinod K.Sharma,J. CM No.10237-C of 2006 Allowed as prayed for.l RSA No.344 of 1989 The plaintiff/appellants by way of this regular second appeal has challenged the judgment and decree dated 7.10.1988 passed by the learned courts below vide which suit for declaration filed by RSA No.344 of 1989 2 plaintiff/appellant claiming to be owners in possession of the suit land situated at village Teera, Tehsil Kharar, and that the entries in Column No.4 be changed to show the names of the plaintiffs as owners, in stead of defendants and also entry in Column No.5 to read as Khud Kast instead of plaintiffs being shown as Gair Marusian Makbuja allottees etc. with a consequential relief of permanent injunction to restrain the defendants from interfering, in any manner, in the peaceful possession of the plaintiffs over the suit land, and in the alternative for possession, stands dismissed. The plaintiffs brought a suit on the pleadings that the land in dispute was allotted to plaintiff No.1 in the year 1949 along with some other land in village Teera/Village Dhanauran, in lieu of the land left by him in Chak No.65 District Multan, now in Pakistan. Plaintiff No.1 became owner of the above said land firstly as allotment by the Central Government, and secondly that his occupancy rights ripened into full ownership in the year 1952 as a result of coming into force of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (for short the Act). It was pleaded that in the year 1954-55 consolidation of holdings took place in village Teera, and the present khasra Nos.29/2 & 29/4 Min measuring 16 kanals was allotted in lieu of old khasra numbers held by plaintiff No.1 as owner. In the year 1969 by way of registered sale deed dated 3.5.1969 plaintiff No.1 along with other land sold 2/3rd share of suit land to plaintiffs No.2 and 3. Mutation No.2641 was sanctioned which showed the plaintiffs to be owners of the suit land. That due to blunder committed by RSA No.344 of 1989 3 the revenue officials the names of defendants No.1, 2 and 7 continued to be shown as owners, and defendants No.3 to 6 as mortgagees against law and facts. Defendants No.1 and 2 sold ½ share of the suit land measuring 8 kanals to defendants No.8 to 10 but they got no better title to the suit land than their vendors, who had title, because of allotment in favour of plaintiff No.1. On the basis of the alleged sale in favour of defendants No.8 and 9 along with other defendants, they were threatening to dispossess the plaintiffs from the suit land forcibly. It was the case of the plaintiffs that the defendants had absolutely no right or interest in the suit land, and that they had no right to interfere, in any manner, in the peaceful possession of the plaintiffs as owners. On notice, defendants filed written statement and contested the suit, the suit of the plaintiffs was dismissed qua defendant No.4 on 3.12.1982. The stand taken by defendants No.1, 2, 7 to 9 was that the plaintiff No.1 never cultivated the suit land, nor he had got any concern with it. The plaintiffs were never the occupancy tenants under Umrao Singh son of Raja Singh and Surjan Singh son of Natha Singh, for more than 35 years as alleged by them. The land in suit was never allotted by any authority to the plaintiffs. It was pleaded that plaintiffs had not specifically stated the name of the authority which is said to have allotted the land in dispute to the plaintiffs, nor any date of allotment was given, without which it was not RSA No.344 of 1989 4 possible for the defendants to rebut the assertions. That the plaintiff No.1 maneuvered wrong entries in the revenue record with the active connivance of the revenue officials. It was claimed that the land in dispute was owned and possessed by Matu Ram, Ram Sarup and Smt. Shanti Devi who sold it to defendant Gian Singh and Nand Singh vide registered sale deed dated 28.12.1981 and 19.4.1982. The defendants after purchasing the land on 28.12.1981 installed a tube- well, in the land in dispute after spending a sum of Rs.10,000/- and that defendant/respondents were cultivating the same. It was also the case of the defendants that the plaintiffs never raised any objection to the acts of the defendants, rather made them to believe that they had absolutely no concern, whatsoever, with the land in dispute. It was pleaded that the plaintiffs are estopped by their act and conduct to challenge the ownership of Matu Ram, Ram Sarup and Smt. Shanti Devi. Matu Ram, Ram Sarup and Shanti Devi, and their predecessors-in-interest were the original of residents of Village Teera, Tehsil Kharhar. It was claimed that their land could not be treated as evacuee property, nor it could be allotted to any person by any authority. It was also the case set up, that the allotment, if any, though specifically denied, was only in papers as the plaintiffs were never put in possession of the suit land by any authority. The allotment, if any, was said to be void ab initio on the plea that Matu Ram, Ram Sarup and Smt.Shanti Devi and their predecessors-in- interest were originally the residents of Teera, hence their land could not be RSA No.344 of 1989 5 treated as evacuee property nor it could be allotted to any person. It was also denied that the plaintiffs were in possession of the suit land as allottee of the Central Government, or that the occupancy tenancy rights had ripened in full ownership as alleged. The plaintiffs never moved the appropriate authority till the filing of the suit for declaring them to be the owners of the land in dispute. The jurisdiction of the court to entertain the suit was also challenged. The sale was said to be void ab initio as it was claimed that plaintiff No.1, being not the owner, had no authority to alienate the land in dispute to plaintiffs No.2 and 3. Mutation was said to have been sanctioned wrongly, which did not create any title in favour of the plaintiff/appellants. It was also the case of the defendants that the plaintiffs failed to plead, the error said to have been committed by the revenue authorities nor the name of person who committed error has been mentioned. It was also claimed that defendants No.1, 2, and 7 to 9 are the owners of the land in dispute, whereas defendants No.3 and 6 are mortgagees. It was also the case set up that defendants No.1, 2 and 7 rightly mortgaged the land in dispute. It was also pleaded that the plaintiffs or any body else never raised objections to mortgage of land. Defendants No.1, 2 and 7 sold the land in dispute to defendants Gian Singh and Nand Singh who were in cultivating possession. It was pleaded that the mutation was sanctioned in favour of the vendees without any objection. It was also pleaded that in the presence of more than 50 persons, Balwant Singh plaintiff admitted that defendant Gian Singh and RSA No.344 of 1989 6 Nand Singh were in possession of the land, and that they had also installed a tube-well in it. It was only after the due satisfaction of the actual position that Assistant Collector Ist Grade sanctioned the mutation. It was denied that the plaintiffs were the owners or in possession of the suit land, and therefore, the question of interference in their possession did not arise. The claim of the plaintiffs that they were entitled to possession was denied, on the ground that in the latest revenue record defendants were recorded as owners in possession of the suit land. It was pleaded that in case the plaintiffs are held entitled to possession, in that situation, they are liable to pay Rs.10,000/- which had been spent for installing the tube-well in the land in dispute without any objection from the plaintiffs. It was also pleaded that it was within the knowledge of the plaintiffs that they had no concern, whatsoever, with the land in dispute. The plea of limitation as well as suit being bad for non-joinder of necessary parties was also raised. It was also claimed that the plaintiffs did not come to court with clean hands, hence they were not entitled to discretionary relief of injunction. It was further pleaded that there was dispute with regard to the legality of allotment as also nature of property, i.e. whether it was evacuee or not. The jurisdiction of the civil court was barred under section 36 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (for short 1954 Act). Other defendants also took similar pleas. On the pleadings of the parties learned trial court was pleased to frame the following issues:- RSA No.344 of 1989 7 1. Whether the plaintiffs are entitled to the injunction and declaration prayed for? OPP 2. Whether plaintiff No.1 had been cultivating the land in suit as occupancy tenant under Umrao Singh, Surjan Singh and defendant Nos. 3 to 6 and 7 for the last more than 35 years? OPP 3. Whether plaintiff has become owner of the land in suit firstly because the land was alleged to have been allotted to him by the Central Government and secondly because he is the occupancy tenant? OPP 4. Whether the plaintiffs are in possession of the land in suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit has not been filed within time? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether this Court has no jurisdiction to declare the plaintiff as an occupancy tenant? OPD 9. Whether the plaintiffs are guilty of suppression of real facts? OPD 9-A. Whether the defendants are the original residents of village Tira and the suit land could not be allotted to the plaintiffs? OPD RSA No.344 of 1989 8 9-B. Whether the defendants have installed tube-well in the suit land by spending Rs.10,000/-. If so its effect? OPD 9-C. If issue No.9-B is proved, whether the defendants are liable to pay the requisite Court fee? OPD 0-C. Whether the plaintiffs are estopped by their act and conduct to challenge the ownership of the defendants regarding the suit land? OPD 10. Whether the jurisdiction of Civil Court is barred as alleged? OPD 11. Whether the plaintiffs are estopped by their act and conduct to challenge the ownership of Matu Ram, Ram Sarup and Shanti Devi, if so its effect? OPD 12. Whether the defendants have spent Rs.10,000/- for installation of tube-well in the land in suit, if so its effect? OPD 13. Relief. In support of issue No.1 Kulwant Singh plaintiff appeared in the witness box, and stated, that the disputed land measuring 16 kanals was being cultivated by his father for the last 30-35 years as owner, which was allotted to him about 30 years ago in lieu of the land left in Pakistan. It was during consolidation that new khasra numbers were allotted in lieu of the old land. The land was got mutated in the name of his father as well as in the name of his brother Balwant Singh, and that the suit property was said to be in their possession. He further stated that the defendants threatened to RSA No.344 of 1989 9 disposes the plaintiffs forcibly. It was claimed that earlier they were cultivating the land as Gair marussi and therefore, they were entitled to be shown as owners of the land in dispute. Parshotam Lal, clerk from the Rehabilitation Department appeared as PW 2 and produced Ex.PW 2/A i.e. true copy of original sanad but he was unable to tell that who were the previous owners of the land allotted to plaintiff No.1. The defendants, on the other hand, led evidence to show that the land was purchased through sale deed, which was scribed at the instance of Matu Ram, Ram Sarup and Smt.Shanti Devi by the Deed Writer. It was claimed that for about 15-20 years the land was lying uncultivated, and that, since then the girdawaris are in their name. At the time of installation of tube-well none of the plaintiffs objected to the installation of tube-well. It was also stated that previously Multan Singh with the connivance of Patwari got entries regarding cultivation of land in his favour. Prior to the purchase the vendors were in actual possession of the land in dispute, and it was also stated that the land was never allotted to Multan Singh, nor plaintiffs have ever been in possession of the land in dispute as occupancy tenants. Mutation was said to have been decided by Sub Divisional Officer (Civil) Kharhar in the presence of whole of the village, where the plaintiffs admitted the possession of the defendants. Evidence was also led to show that the land in dispute was owned by Raja Ram and others, and that some of the land was in possession of Muslims as Marussi. It was pleaded that till 1950-51 there was no record RSA No.344 of 1989 10 which could prove that the land in dispute was ever declared evacuee property, or that it was allotted to anybody. In the year 1950-51 land was allotted to Multan Singh vide allotment order No.AB-2/20/1 but no mutation was sanctioned whereby the occupancy tenants were conferred with ownership rights. It was also the stand taken in the evidence that there was no record which could show that this land was ever declared as evacuee property. In the revenue record there was nothing to show that ownership rights were conferred regarding land in dispute in favour of Muslims or in the name of Custodian. There was also no record which could prove the payment of compensation to the original owners. It was claimed that from 1887-88 to 1950-51 the land in dispute was owned by Hindus, and that in column of cultivation, marussi Mohammedans was recorded. Possession was got delivered to Multan Singh according to fard taksim araji matruka on 11.4.`1950. Evidence was also produced to show that the defendant/respondents purchased material for installing the tube-well. The contention of the plaintiff/appellants that in the year 1949 plaintiff No.1 was allotted suit land along with some other land in village, thus, he became owner, of the suit land as allottee of Central Government, as occupancy tenants, was rejected by holding that provisions of Section 53 of the Punjab Tenancy Act, 1887 were not followed as the custodian did not get declaration that occupancy tenants right had ripened into ownership. The learned trial court held that when custodian was not owner in possession of the suit property, then the suit land could not be allotted to the plaintiffs by the department. It was also held that the plaintiff during his RSA No.344 of 1989 11 cross-examination, admitted that after orders of Sub Divisional Officer (Civil) defendants were in possession of the suit land. The learned trial court further held that there is no record as to show that the plaintiffs were dispossessed by defendants after 1980. On issue No.1 it was held that the plaintiffs were not owners of the suit land nor they were in possession thereof. The relief of possession was declined by holding that the plaintiff/appellants had failed to prove their ownership. On issue No.2, learned trial court held that in jamabandi Ex.P.1 Multan Singh plaintiff was shown in possession as occupancy tenant and in the year 1950-51, Multan Singh was shown in possession as allottee along with Daulat Ram. Again in the jamabandi for the year 1976-77 Ex.D.3 plaintiffs have been shown in possession as Gair Marussi. Plaintiff No.1 cultivated the suit land as co-sharer tenant under Umrao Singh, Surjan Singh and defendants No.3 to 7. The plea was not accepted on the ground that there was no document on record which could show as to how the plaintiffs came in possession as occupancy tenants. The learned trial court also held that it was admitted by the plaintiffs that defendants were in possession of the suit land. Therefore, it was held that plaintiff No.1 was not in cultivating possession of the suit land as occupancy tenant, under Umrao Singh and Surjan Singh or defendants No.3 to 7 for the last more than 35 years. Issue No.2 was also decided against the plaintiffs. On issue No.3, learned trial court held that as the custodian never became owner of the suit land, therefore, the land could not have been RSA No.344 of 1989 12 allotted by the Custodian to the plaintiffs. It was further held that the plaintiffs were not the occupancy tenants as there was no order in this regard in their favour. On issue No.4, in view of the admission of the plaintiffs it was held that the plaintiffs were not in possession of the suit land. On issue No.5 it was held that plaintiffs are neither owners nor in possession of the suit land as there was no order in favour of the plaintiffs that they were occupancy tenants. It was also held that the suit filed by the plaintiffs was not maintainable in the present form. On issue no.6, learned trial court was pleased to hold that the plaintiffs failed to bring on record any cogent evidence, to prove as to whether they ever came in possession, in view of the admitted position, that the defendants were in possession of the suit land. There was no record showing dispossession of the plaintiffs from the suit land. On issue No.7, it was held that the defendants have not been able to show that the suit of the plaintiffs was bad for non-joinder of necessary parties. On issue No.8, it was held that the provisions of section 53 of the Punjab Tenancy Act, 1887 were not followed by the plaintiff/appellants or the custodian. The jurisdiction of the civil court was said to be barred to declare the plaintiffs as occupancy tenants. On issue No.9 it was held that the plaintiffs suppressed the material facts by not disclosing as to how defendants came into possession of the suit land. Issue No.9 was, therefore, decided against the plaintiffs. RSA No.344 of 1989 13 On issue No.9-A learned trial court held that as custodian was not owner of the suit property so the land could not have been allotted to the plaintiffs. Issue No.9-A was also decided against the plaintiffs as there was evidence to show that the defendants were residents of village Teera. On issue No.9-B, learned trial court was pleased to hold that the defendants failed to prove that expenses of Rs.10,000/- was incurred in installing the tube-well, therefore, issue No.9-B was partly decided in favour of the defendants by holding that the tube-well stood installed therein, but expenses of Rs.10,000/- were not proved. Issue No.9-C was decided in favour of the defendants by holding defendant was not liable to pay court fee. Issue No.9-D was also decided against the plaintiffs and in favour of the defendants, as the plaintiffs had not objected to the installation of tube-well. It held that the plaintiffs were estopped by their own act and conduct to challenge the ownership of defendants. On issue 10, learned trial court was pleased to hold that there was no document, on record to show that the suit land was ever declared as evacuee property. The learned trial court further held that the civil court could not go into the question whether the suit land is evacuee property or not in view of the section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Issue No.10 was also decided, against the plaintiff/appellants. On issue No.11 it was held that the plaintiffs are neither owners nor in possession of the suit land, and also that the plaintiffs were RSA No.344 of 1989 14 not the occupancy tenants over the suit land, which was under the ownership of Matu Ram, Ram Sarup and Shanti Devi. Defendants Gian Singh, Nand Singh and Madho Singh were held to be owners in possession of the suit land on the basis of sale. It was also held that the plaintiffs were estopped by their own act and conduct to challenge the ownership of Matu Ram, Ram Sarup and Smt.Shanti Devi. On issue No12 it was held that there was no proof of expenditure of Rs.10,000-, but it was held that tube-well stood installed. The suit was, accordingly, ordered to be dismissed. The findings recorded by the learned trial court were affirmed by the learned lower appellate court, and the appeal was dismissed. Mr.S.K.Pipat, learned senior counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law for consideration by this court. 1. Whether the civil court could go into legality of allotment made in favour of the plaintiff/appellants in view of the bar under section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954? 2. Whether the findings recorded by the learned courts below that the property was not evacuee property and therefore, allotment could not be made in favour of the plaintiff/appellants is result of misreading of oral and documentary evidence, thus perverse? 3. Whether the learned courts below wrongly discarded the RSA No.344 of 1989 15 admissible evidence to reject the claim set up by the plaintiffs, thus, the findings are perverse? In support of the substantial questions of law, learned senior counsel for the appellant referred to allotment letter dated 19.8.1949 Ex.PW 2/A which showed that area measuring 6-11¼ standard acres was allotted to Multan Singh son of Sarwan Singh Rajput. However, no value was calculated with respect to 12 biswas of land as the same was marussi. The allotment was made as the land though under the ownership of Raja Ram etc. but was in cultivating possession of Khairuddin son of Reehmaddin as Gair marussi and thereafter, in pursuance to the allotment made vide PW 2/A Multan Singh was entered as owner. This position stands proved from Ex.P.10. Ex. PW2/A showed that the land in dispute was allotted to Multan Singh son of Sarwan Singh on quassi permanent basis under the conditions published by notification of Government of Punjab No.4802 dated 8.7.1942. Thereafter by invoking provisions of Section 10 of the 1954 Act, land was allotted to Multan Singh son of Sarwan Singh in lieu of compensation payable to him under the 1954 Act vide Ex.A, taken on record by way of additional evidence. Thus, by virtue of the allotment Multan Singh the predecessor-in-interest of the appellant had become owner of the property. The allotment could not be questioned in the civil court in view of the bar under section 36 of the Administration of Evacuee Property Act, 1950 (for short 1950 Act). Therefore, the contention of the learned RSA No.344 of 1989 16 senior counsel is that the learned courts below erred in law in questioning the allotment made in favour of the appellant/plaintiffs. It is also the contention of the learned counsel for the appellant that the learned courts below erred in law in holding that the property being under the ownership of Hindus could not be treated as evacuee property,. The contention is that the findings of the learned courts below cannot be sustained in view of Ex.PW 2/A and Ex.A, which show that the allotment of occupancy rights initially made, matured into ownership by way of allotment vide Sanad Ex.A. The contention of the learned senior counsel for the appellant is that by enforcement of law the occupancy