RSA No. 862 of 1985 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 862 of 1985 (O&M) Harpreet Singh (deceased) through LRs ....Appellants Versus Punjab State through Collector, Ferozepore ...Respondent RSA No. 430 of 1994 (O&M) The State of Punjab and another ....Appellants Versus Harpreet Singh (deceased) through LRs and another ...Respondents CWP No. 7688 of 1997 (O&M) State of Punjab ....Petitioner Versus Smt. Kiranjit Kaur and others ...Respondents CWP No. 8796 of 1997 (O&M) Smt. Kiranjit Kaur and others ....Petitioners Versus Union of India and others ...Respondents Date of Decision:29.10.2010. CORAM : Hon'ble Mr. Justice Mahesh Grover Present:- Mr. Karan Singla, Advocate for Mr. R.N. Raina, Advocate for LRs of Harpreet Singh. Mr. G.S. Sandhawalia, Advocate for PUNSUP. Mr. Anil Rathee, Advocate for UOI. Mr. BBS Teji, Sr. DAG Punjab. MAHESH GROVER, J (Oral) This order will dispose of RSA Nos. 862 of 1985, 430 of 1994 and CWP Nos. 7688 and 8796 of 1997. RSA No. 862 of 1985 (O&M) 2 The facts may be noticed in brief. Harpreet Singh appellant in RSA No. 862 of 1985 filed a suit bearing No. 134-1/80 with a prayer that respondent-State of Punjab be restrained from interfering in his possession over the suit land of which he is in possession as an owner. It was pleaded by him that the land in question was transferred by the State of Punjab in his favour and that he was in peaceful possession of the same. State of Punjab contested the suit and took a plea that the land was never validly transferred to Harpreet Singh, the appellant in RSA No. 862 of 1985, but admitted his possession. The following issues were framed: 1.Whether plaintiff is owner in possession of the suit land and is entitled to injunction as prayed for?OPP 2.Whether civil court has no jurisdiction?OPP 3.Whether suit is bad for non-service of notice u/s 80 CPC? OPD 4.Whether suit is bad for non-joinder of necessary parties?OPD 5.Relief. The trial Court thereafter on the basis of evidence concluded that the possession was concededly that of the appellant Harpreet Singh as this fact was not disputed by any of the parties. It however, returned a finding that Harpreet Singh cannot be termed to be owner of the property in absence of any evidence to that effect. The suit was decreed partially protecting the possession of the appellant but at the same time with an observation that the ownership of the appellant did not stand established and an appeal followed in which the Appellate Court vide its judgment dated 22.11.1984 upheld the finding recorded by the trial Court on the issue of possession but observed that the finding of ownership was un-warranted as in a suit for permanent injunction the question of ownership ought not to have gone into by learned trial Court and therefore, observed that the same cannot be considered to be res-judicata between the parties in any other further proceedings in the event of any finding coming into existence. RSA No. 862 of 1985 (O&M) 3 RSA No. 862 of 1995 has been filed in the back drop of the aforesaid controversy. In so far as RSA No. 430 of 1994 is concerned the State of Punjab has sought to recover the amount of ` 57,000/- for the use and occupation of the suit land by Harpreet Singh (appellant in RSA No. 862 of 1985), who was pleaded as defendant but who denied his liability to pay the amount. The trial Court concluded that the recovery sought from the defendant Harpreet Singh could not be effected for want of adopting a proper procedure in law which required issuance of prior notice before any such assessment could be made under Section 5 of the Punjab Package Deal Properties Disposal Act, 1976 (hereinafter referred to as 'the Act'). The trial Court having dismissed the plea, the appeal followed before the First Appellate Court which confirmed the findings of the learned trial Court and which is now the subject matter of the second appeal preferred by the State of Punjab in RSA No. 430 of 1994. During this interregnum, the possession was retrieved by the State of Punjab from the clutches of the un-authorised occupant represented initially by Harpreet Singh and now after his death his legal representatives, namely Kiranjeet Kaur and others. The possession was retrieved after the Collector passed an order on 9.1.1996. The Collector while passing the order dated 9.1.1996 observed as follows: “After hearing the arguments of both sides and taking into consideration the evidence on the file, I have come to the conclusion that as per entries in the revenue record, the Central Govt. is owner of the land in dispute and that Harpreet Singh respondent (deceased) and after his death his heirs have been in possession of the land from the year, 1960 in an un-authorised manner. This is evident from the entries in the khasra girdawaris (Ex-A/2) and copy of jamabandi (Ex-A/1). The respondents have failed to produce any documentary evidence as to the purchase or lease of the land in their favour, nor they have produced any cogent evidence for occupying the land in dispute. Shrimati Kiranjit Kaur widow of Harpreet Singh (RW-1) in her statement stated that her husband Harpreet Singh had been in possession of the land in dispute for the last 35 years and RSA No. 862 of 1985 (O&M) 4 after its death his heirs have been in possession thereof. As such the possession and cultivation of the respondents is proved from the statement of the witnesses produced from the witnesses. In these circumstances I am not inclined to accept the arguments advanced by the learned counsel for the respondents. Therefore, the petition filed by the petitioner under the Punjab Public Premises Act is accepted and the respondents are ordered to be evicted from the land in dispute and it is also ordered that the applicant is entitled to recover the rent @ Rs. 2000/- per acre per year from the year 1960 to date amounting to Rs. 745375/- for use and occupation of the land in dispute by the respondents. The file be consigned to the record room after due compliance.” The report as per the copy of the Rapat Raznamcha indicating taking over the possession is also on record as Ex.PW4/T. This order was challenged by the legal representative's of Harpreet Singh, the original occupant, before the Commissioner, Ferozepur Division, Ferozepur who set aside the order of the Collector. The prime reason for setting aside the order of the Collector was that the land in question was recorded in the revenue entries as “Tasawwar Bai” and since this did not amount to unauthorised occupancy, the proceedings under the Public Premisses Act were not applicable. It was further observed in this order that even if the occupants were considered to be in un-authorised possession, the property being the subject matter of Package Deal Act, the proper forum would have been the Civil Court and on this count the proceedings under the Public Premises Act were not attracted. It was further observed that the possession has been taken before the expiry of 30 days of the publication of the order and on that count also the order was held to be infirm. After retrieving the possession some portion of the land was sold to Telephone Department of UOI, some to PUNSUP Department and some to Education Department. The followings are the details of land sold to Telephone Department of UOI, PUNSUP and Education Department Land To 23 Kanals 18 Marlas Telephone Department RSA No. 862 of 1985 (O&M) 5 2 Kanals PUNSUP Department 8 kanals Education Department. In this way total area of 33 kanals 18 marlas was alienated from the suit property. CWP No. 8796 of 1997 has been filed by the occupants with a plea that respondents i.e. UOI and State of Punjab be restrained from interfering in their possession. The facts as set out in this petition are inconformity with the facts which have been elaborately stated above. The controversy thus narrows down to the following aspects: 1.Concededly the appellant Harpreet Singh in RSA No. 862 of 1997 and after his death his legal representatives were in possession of the suit property. 2. There is no material on record to reflect their ownership and they consistently failed before all authorities to establish their claim on the land as owners. 3. Out of 122 kanals, 33 kanals and 18 marlas land was sold to various departments 4. Possession has been taken from the appellants. In the back drop of the aforesaid it has now to be evaluated as to what is the claim of the petitioners in CWP No. 8796 of 1997 and the claim of the respondent State of Punjab and also UOI and PUNSUP. As observed earlier there is indeed no doubt that the appellants (in RSA No. 862 of 1985) were in possession and which fact was admitted by the respondent-State of Punjab. The appellant pleaded ownership but failed to produce any material on record. In any eventuality the fact remains that possession was taken over from them under some process of law and whether those proceedings could be termed to be valid or un-warranted is a separate issue. The petitioners in CWP No. 8796 of 1997 have merely sought to restrain the respondents from interfering in their possession whereas the fact of the matter is that possession stood already taken over from them on 11.1.1996 which was admitted by the petitioners as they laid a challenge to the Rapat RSA No. 862 of 1985 (O&M) 6 Roznamcha. A perusal of the record shows that the appellants in RSA No. 862 of 1985 were merely given possession of the land on lease from 17.3.1960 to 15.12.1960 and except for a stray entry into the revenue record which pertains to the year 1968-69 showing the appellants as “Tasawwar Bai”, there is no other entry to substantiate his plea of ownership or authorised occupant. In this view of the matter, the observations of the Commissioner that the appellant was not in un-authorized possession is seemingly mis-concieved. The occupants who were in possession of the land had a duty cast upon them to demonstrate before various fora where they did contest the proceedings, that their possession was legitimate and having failed to do so, no fault could be found either in the proceedings initiated by the respondent to retrieve the possession or in the taking over of possession subsequent to such proceedings. For the aforesaid reasons, the RSA No. 862 of 1985 is held to be without any merits and is dismissed. RSA No. 430 of 1994 also does not warrant any interference for the reason that no proper procedure was followed by the State of Punjab before ordering the recovery of amount from the occupants. CWP No. 7688 of 1997 is allowed and the impugned order of the Commissioner is set aside. CWP No. 8796 of 1997 stands dismissed. (MAHESH GROVER) 29.10.2010 JUDGE Reema