RSA No. 1670 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: April 08 , 2010 1. RSA No. 1670 of 2007(O&M) Jaspal Singh vs. Kishan Chand (since deceased) through his legal heirs 2. RSA No. 1675 of 2007(O&M) Jaspal Singh vs. Kishan Chand (since deceased) through his legal heirs 3. RSA No. 1671 of 2007(O&M) Tara Singh vs. Kishan Chand (since deceased) through his legal heirs 4. 4. RSA No. 1681 of 2007(O&M) Tara Singh vs. Kishan Chand (since deceased) through his legal heirs 5. RSA No. 1672 of 2007(O&M) Balkar Singh vs. Kishan Chand (since deceased) through his legal heirs 6. RSA No. 1673 of 2007(O&M) Balkar Singh vs. Kishan chand (since deceased) through his legal heirs 7. RSA No. 1682 of 2007(O&M) Mohinder Singh and ors. vs. Kishan Chand (since deceased) through his legal heirs 8. RSA No. 1683 of 2007(O&M) Mohinder Singh and ors. vs. Kishan Chand (since deceased) through his legal heirs RSA No. 1670 of 2007(O&M) 2 9. RSA No. 2180 of 2007(O&M) Bhajan Singh vs. Kishan Chand (since deceased) through his legal heirs 10. RSA No. 2182 of 2007(O&M) Bhajan Singh vs. Kishan Chand (since deceased) through his legal heirs Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.B.S.Jaswal, Advocate for the appellant(s). Ms.Punit Kaur Sekhon, Advocate for the respondent(s). **** 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? Ajay Tewari, J. This judgment shall dispose of ten RSAs bearing No. 1670, 1675, 1671, 1681,1672, 1673, 1682, 1683, 2180 and 2182 of 2007 as common questions of law and fact admittedly arise therein. The respondent had filed five suits for possession and the appellants in all these cases had also filed five suits. The suits filed by the respondent were decreed while those filed by the appellants were dismissed. Consequently the appellants filed these ten appeals. The allegations in all the suits filed by the respondent were similar and the allegations in all the suits filed by the appellants were also similar to each other. The facts are being taken from RSA Nos. 1670 and 1675 of 2007. This appeal has been filed against concurrent judgments of the RSA No. 1670 of 2007(O&M) 3 Courts below decreeing the suit of the respondent for possession of the land in dispute. The appellant had also filed a suit for declaration challenging the allotment made in favour of the respondent. That suit has been dismissed by both the Courts below. It is in these circumstances that the appellant has filed two appeals. Brief facts are that one Lal Din who was an ex serviceman was in possession of certain evacuee land as a Pattedar of the Central Government. On 9.1.93 he applied for transfer of that land at reserved price under the Punjab Package Deal Properties Disposal Act, 1976 (hereinafter referred to as 'the Act' for short). He, however, expired during the pendency of his application. The respondent claimed to be the legatee of the said Lal Din and pursued the case for transfer and ultimately by order dated 8.8.96 the property was allotted to him being successor of eligible applicant Lal Din. He thereafter filed the instant suit for possession claiming that the appellant had forcibly dispossessed him in the year 1989. The appellant, however, took the plea that he was in possession since prior to 1970 and both in this written statement and in the civil suit filed by him denied the title of the respondent. The allotment in his favour was also denied. In the written statement filed to the suit of the respondent plea of non-maintainability was also taken. Likewise in the written statement filed to the suit of the appellant the respondent also took up the plea of non-maintainability. Both the suits were consolidated and ultimately both the Courts decreed the suit of the respondent(from which RSA No. 1670 of 2007 has arisen) while dismissing that of the appellant(from which RSA No. 1675 of 2007 has arisen). Hence these two appeals. The following questions have been proposed in RSA No.1670 RSA No. 1670 of 2007(O&M) 4 of 2007:- i) Whether the possession of the appellant is liable to be protected? ii)Whether the land in question is liable to be allotted to plaintiff/Kishan Chand? iii)Whether Lal Din was eligible for allotment of land? iv)Whether plaintiff/Kishan Chand was legal heir of Lal Din? v) Whether the land measuring 77 kanals is liable to be allotted on thorough fair price for just Rs.9000/-? In RSA No.1675 of 2007 the same questions No. (i) to (v) have been proposed as in RSA No. 1670 of 2007. However, vide a a Civil Misc. Application No. 4998-C of 2008 the following two additional questions were also proposed:- vi)Whether this Hon'ble Court is empowered to interfere in the findings of fact recorded by both the Courts below if the same are based on misreading and mis-appreciation of the evidence under Section 100 of the Civil Procedure Code? vii)Whether the jurisdiction of the Civil Court is barred under the provisions of the Punjab Package Deal Properties Disposal Act, 1976 and whether the provisions of the said Act have been adhered to by the Courts below while passing the decree in favour of the respondent? As regards question No.(vii) learned counsel has argued that a perusal of Sections 7 and 16 of the Act reveals that both the suits were not maintainable. Learned counsel has argued that in case suit of the respondent was deemed to be maintainable then the suit of the appellant RSA No. 1670 of 2007(O&M) 5 could not have been taken to be not maintainable. In this connection it would be apposite to reproduce Section 7 and Section 16 of the said Act which is as under:- “S.7. Power to vary or cancel leases or transfer or any package deal property.- (1) Notwithstanding anything contained in any other law for the time being in force but subject to any rules that may be made under this Act, the Tehsildar(Sales) or Naib Tehsildar (Sales) may cancel any transfer or terminate any lease or amend the terms or any transfer or lease under which any package deal property is held or occupied by a person; Provided that no transfer shall be cancelled, lease terminated or the terms of any transfer or lease amended unless such an action is permissible under the terms and conditions of the instrument of transfer or lease, as the case may be, and unless an opportunity of showing cause has to be given to the transferee or lessee, as the case may be. (2) Where any person- (a) has ceased to be entitled to the possession of any package deal property by reason of any action taken under sub-section (1), or (b) is, in the opinion of the Tehsildar (Sales) or Naib- Tehsildar (Sales) otherwise in unauthorised possession of any package deal property; he shall, after has been given a reasonable opportunity of showing cause against his eviction from such package deal RSA No. 1670 of 2007(O&M) 6 property, surrender possession of the property on demand being made in this behalf by the Tehsildar (Sales) or Naib-Tehsildar (Sales) or by any other person duly authorised by the Tehsildar (Sales) or Naib-Tehsildar (Sales),as the case may be. 3) If any person fails to surrender possession of any package deal property on demand made under sub-section (2), the Tehsildar (Sales) or Naib Tehsildar (Sales) may, notwithstanding anything to the contrary contained in any other law for the time being in force,eject such person and take possession of such property and may, for such purpose, use or cause to be used such force as may be necessary. S.16. Bar of jurisdiction and finality of orders.-(1) Save as otherwise expressly provided in this Act, every order made by any officer or an authority under this Act shall be final and no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the state Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (2) Nothing in the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, shall apply to package deal property. On a reading of these two sections the Courts below have held that as regards challenge to the allotment of the respondent the same could RSA No. 1670 of 2007(O&M) 7 be made only before the Tehsildar (Sales) in conformity with Section 7. However, as regards the suit for possession filed by the respondent both the Courts have held that such a suit would be maintainable. Learned counsel has argued that the only recourse for the respondent would have been to move an application under section 7 (2)(b) before the Tehsildar (Sales) who would have the right to evict the appellant and put the respondent in possession. Concededly there is no specific provision for transfer of possession. Section 4 deals with the power to transfer package deal property but provides only for different modes of transfers viz. sale by auction, by allotment or by lease. Sub-section (2) deals with a situation where the Tehsildar (Sales) has to take possession himself on account of lease or transfer. The said section does not provide for the transferee to move application for seeking possession. It was noteworthy that the words used are 'package deal property'. Once a property has been transferred it ceases to be package deal property unless the transfer is varied or cancelled. Such an allottee can well file a suit for possession and the bar of section 16- relating as it is to an order made by any officer or an authority under this Act or matter which the state Government or any office or authority appointed under this Act is empowered by or under this Act to determine -would not bar a suit for possession. As regards question No. (i) learned counsel has pointed out that the trial Court has found that the appellant was a tenant under Lal Din and consequently he could have have been evicted in a suit for possession. I am afraid this argument is not available to the appellant since the appellant not only did not take this plea in the written statement he rather denied the title of the respondent. A tenant who denies the title of his landlord cannot seek the protection of a Tenancy Act. RSA No. 1670 of 2007(O&M) 8 No other question has been pressed. Consequently holding the questions argued against the appellant these appeals as well as the applications for stay are dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. A copy of this order be placed on the files of all the connected cases. (AJAY TEWARI) JUDGE April 09, 2010 sunita