280 RegularSecond AppealNo09 of 2006 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RegularSecond AppealNo19 of 2006 Date of Orderl October 75ent2009 Banwari Lal veeJlppellant 1 C Versus Devi Lal and others espondents 0 C I CORAM HONBLE MR JUSTICE RAJIVE BHALLA C5 I Present Mr R S Mehta Advocate for the appellant Mr Vikas Kumar Advocate 2 for the respondents RAJIVE BHALLA J The challengesjudgmentsand decrees a5 dated 101 2001 and 23 122005 passedby the Additional Civil Judge 7 Senior Divisionl Dabwali and the Additional District Judge Sirsa Z respectivelydecreeingthe suit fiied bythe respondents and dismissinghis m appeal The filed a suit for declaration that theyare owners in possessionof 213 share of separateparceisof Iand measuring 68 kanals and 18 marlas and 68 kanals and 7 marlas situated in village Kaluana Tehsil Dabwali District Sirsa alongwith the and therefore the order dated 171981 passed by the Prescribed AuthorityDabwali allowingthe alone to purchasethe Iond allotted to Sardara and Ganesha IS nIulland void A consequential relieffor grantof a permanentinjunction to restrainthe from alienatingthe suit Iand was also prayed On facts the respondents pleadedthat Ganesha and Sardara were real brothers Banwari Lal the Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 4 m 0 RegularSecond Appeal N 609 of 2006 2 appellantDevi Lal respondentnl and Nanak since deceased and now representedby his Iegal representativesare the sons of Ganesha Ganesha and Sardara were jointtenants in possessionof Iand belonging to one Ram Kumar son of Chuni Lal a small Iandowner They were ordered to be evicted from the Iandsubjectto their resettlement Ganesha and Sardara were resettled on iand measuring 68 kanals 18 marlas and m 68 kanals 5 marlas respectivelyon 03051964 as resettled tenants 0 Sardara died issueless and unmarriedand therefore his rightsin the suit C Iand were inherited by Ganesha After the death of Ganesha the I C5 appeilantappliedto the authoritiesto purchasethis Iand but concealed the I fact that the respondents were also sons of Ganesha The appellantwas ailowed to purchasethe iand as the son of both Sardara and Ganesha A mutationbearingNo1775 dated 22 091989 was attested in his favour It was pleadedthat as partiesto the suit are the sons of Ganesha the order I 08 passed by the prescribedauthorityallowingthe appellantalone to purchasethe allotted Iand is a nuliity 7 Upon notice the appellantfiled a written statement raising Z pleasof Iimitation misJoinder of necessary panies Iocus standi to Ole the suit the bar of jurisdictionof a civil court etc On merits the appellant pleadedthat as he is the adoptedson of Sardara as recorded in an ancestral bahi he is entitied to purchasethe Iand allotted to Sardara With respectto the share of Ganesha the appellantpleadedthat as the khasra girdwaris are recorded in his name the revenue authorities rightlyallowed him to purchasethe Iand It was further pleadedthat duringthe Iife time of theirfather his brothersseparatedfrom the familyandtherefore have no subsistingrightin the propertyIeft behind by Sardara or Ganesha It was also averred that nol has been residing in Since 1960 and is therefore not entitled to any relief Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 282 7 0 2 RegularSecond AppealNo19 of 2006 3 The Oled a replication le averments in the written statement and reiterating the averments in the plaint On the basis of the pleadingsthe trial court framed the following issue 1 Whether the plaintiffsare owners in possessionof their r respectiveshares in the suit iand as mentioned in the 0 headingof the plaint20PP 1 C3 2 Whether the order dated 17 02 981 passed by the I C Prescribed AuthorityDabwali suit N7OA titled as I State vs DaIipand others is null and void and Iiableto Z be set aside as alleged20PP 3 Whether the mutation n1775 and 1771 dated C 209 1989 are also null and void and IiabIeto be set I 08 aside as alleged70PP 4 VVhetherthe suit is not maintainabie in the present 7 form70PD Z 5 VVhether the suit is not within Iimitation20PD tl 6 Reliefl After consideringthe pleadingsthe evidence adduced and the arguments addressed the trial court decreed the suit by holdingthat the order passed by the prescribedauthorityis null and void as it was obtained by the appellantby perpetuating a fraud It was held that the rightsvested in Sardara were inherited by Ganesha and after his demise bythe Iatters sons e the appellantrespondent no l and Nanak in equal shares The appellanthowever concealed thesefacts from the prescribed authontYPOSedas the son of both Ganesha and Sardara and thereby induced the authorityto allow him to purchasethe Iand As regardsthe pleathat the jurisdiction of civil court is barred the trial court held ttiat as Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 283 9 RegularSecond Appeal No 609 of 2006 4 the order passedin favourof the appellantis a nullitythe jurisdictionof clvil courts to examine itsIegalityis not barred Aggrievedbythe aforementionedjudgmenthe appellantfiled an appeal Vide judgmentand decree dated 23 122005 the Additional DistrictJudge Sirsa dismissed theappeal Counsel for the appellantsubmits that the suit IS barred by 1 C Iimitation as the order dated 17 1981 has been challengedon 0 24 101 997 The couns below ignoredthe contradiction between the C pleadingsand the evidence In paragraph13 of the plaintthe respondents I C5 have averred that the fraud came to their knowledgea week before the filingof the suit whereas in their depositionbefore the trial coun theyhave Z deposedthat theycame to know about the fraud 2Y years before the filing of the suit It is submittedthat this contradiction between the pleadings C2 and the evidence has been jgnoredbythe courts below I 08 Another argument pressed into service is that as Nanak deceasedolaintiff was a partyto and a beneficiaryunder the order of ee allotment ExP4 he was estoppedfrom filingthe suit It is further urged Z that in view of the statutorybar enacted by Section 26 of the Haryana Ilm Ceilingof Land Holdoings Act 1971 hereinafter referred to as the Haryana Actl prohibitingcivil courts from entertaining such suits the couns below erred in holdingthat their jurisdiction is not barred It is arguedthat as the order passed by the prescribedauthoritymay at best be said to be erroneous the courts below had no Jurisdictionto entertain the suit Reliance in this regardis placed upon a Full Bench judgment of this court reportedas State of Harvanaand others etc Vinod Kumar etcld others1986 PLJ 161 and Savirti and Bhaqwanti v of Se of Harana and others 19971 PLJ 272 It is further arguedthat as the State cf Haryana was not impleaded as a party therefore the suit should have been dismissed for non4oinderof necessary parties In suppoIlof this Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 284 RegularSecond AppealNo 609 of 2006 argumentreliance is placed upon a judgmentreportedas GujjarSingh etc vs Kaur Singh etc 1994 PLJ 483 It is further arguedthat as the appellantalone attorned to the Iand as a tenant the prescribedauthority rightlyallowed him to purchasethe suit Iand The respondentson the other hand have failed to produceany evidence that theywere in possessionas tenants or that theyattorned to the IandIord and therefore have no rightto allegethat as theyare the sons of a resettled tenant they are automatically 0 entitled to purchasethe Iand allottedto him It is arguedthat a resettied C tenant is requiredto pay rent to the Iandlordand as the respondentshave I 0 not producedany evidence of their tenancythe courts below could not I have decreed the suit and dismissed the appeal In suppotl of these Z argumentsthe appellant placesreliance upon judgmentsreportedas Sir Singh v Financial Commissioner and others 1964 PllA2 Bal Ram and others v Sanwal Ram and others 1970 PL625 and I 08 Madho Dass and another v Midha Sinqh and another Il 782 m It is further arguedthat successlOll to a tenancyopens in Z accordance with the provisionsof Section 80f the PunjabSecurityof Land Tenures Act hereinafter referred to as the PunjabActl and not itl accordance with Section 59 of the PunjabTenancyAct or the provisionsof the Hindu Succession Act The courts below have therefore committed an error in holdingthat the appellant his brothers Devi Lal and Nanak would succeed to the rightsof Sardara and Ganesha as tenants in common It is arguedthat in view of the errors committed by the courts below the followingsubstantial questionsof Iaw arise for consideratior tti1 VVhether the suit filed the respondentsolaintiffwas within Iimitation especiallyin vievv of the contradictory stand of the in the suit regarding Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 285 1 1 RegularSecond Appeal N 609 of 2006 e the knowledgeof the allotmentorder iil VVhether the civil cou11 had the jurisdictionto try and hear the presentsuit in view of the fact that plaintiff Nanak was himself a partyto the order of allotment ExP4 and himself a beneficiary in the allotmentorder Devi Lal the other plaintiffhavingshifted to Rajasthan The case of the appellarlefendant is covered by the 0 ratio of the Iaw Iaid down by the Honble Full Bench in C case titled as State of Haryanaversus Vinod Kumar I C5 and others reported as 1986 P l1 161 I iI VVhether the State of Haryanawas a necessary partyin Z the suit VVhetherin the absence of the state the suit was Iiableto be dismissed C ivl Whether Section 59 of the PunjabTenancy Act I 08 appliedto the succession of the tenancy rightsdespite the fact that Ganesha and Sardara were the tenants on 7 paymentof 113d Batai Whether section 8 of the Z PunjabSecurityof Land Tenures Act would applyto the facts of the presentsuit2 vl VVhetherthe came into possession of the suit Iand in his own rightas beingattorned a tenant bythe Iandowners vil VVhether the suit filed by the respondentsolaintiH was not maintainable as beingout of possession Viil Vllhether the simple assertion of the appellant defendant was sufficient in Iaw to hold the in possession of the suit Iand ignoringthe overwhelming evidence byway of revenue record in the name of the appellantlefendant ll Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 286 RegularSecond Appeal No19 of 2006 7 CounseI for the respondents submits that the findingsrecorded by the courts below do not suffer from any error The order of allotment was obtained by perpetuating a fraud as the appellantclaimed to be the son of both Ganesha and Sardara The appellantcould either be the son of Ganesha or Sardara and not the son of both The trial court therefore rightlyheld that the appellanthad perpetuated a fraud and therebyinduced 1 the prescribedauthorityinto passinga wrong order in his favour It iIS 0 furtherarguedthat as fraud vitiates every act the suit cannot be said to be C barred bytime or bySection 26 of the HaryanaAct It is further arguedthat I C5 allotment of Iand to Nanak jis irrelevant as this allotmentdoes not relate to the estate of Sardara or Ganesha Z It is further submitted that the appellantcannot be allowed to 2 claim sole and exclusive tenancyrightson the basis of entries in the r revenue record as these entries were recorded without notice to the I a5 respondentsIt is argued that in the absence of any Iegalor statutory 00 impediment contained in the PunjabSecurityof Land Tenures Act 1953 or W2 the HaryanaCeilingof Land HoldingsAct 1972 all the sons ofGanesha Z 1 the appellantDevi LaI respondentn01 and Nanak deceased inherited 0m the tenancy rightsof Sardara arid Ganesha irl equalsharest IS submitted that the argumentthat the appellantattorned as a tenant to the iandlord remalns unsubstantiatedbyreference to any evidence It is also arguedthat as the impugnedjudgments and decrees do not aHect the right or interestof the State of Haryanait is not a necessary par lt is funher submittedthat the mere fact that respondentno 1 resides in Hanumangarh In Rajasthanwould not divest him of his right of inheritance It is submittedthat the argumentthat the appeliantswritten argumentswere not considered and decided by the first appellatecourt are incorrect AII relevant argumentsurgedhave been considered and decided againstthe appellant Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 287 ReguiarSecond Appeal No 609 of 2006 m8 have heard counsel for the appellant perused the impugned judgments apprased the questionsof Iaw framed and considered the writtenargumentsfiled beforethe firstappellatecoun The disputein the presentappealrelates to inheritance to the rightsot Sardara and Ganesha to purchasethe Iandallotted to them as ra settled tenants The appellantrespondentnl and the deceased plaintiH 1 Nanak are admittedlysons of Ganesha and Sardara It is not disputed 0 that Ganesha and Sardara were real brothers It is not denied that they C were tenants of a small Iand owner but were ordered to be eJectedsubject I C5 to their rsettlement and were thereafter reesettled on the suit Iand I Sardara passed away on 071 966 issueless and unmarried After the Z death of Ganesha the appellantapproachedthe Prescribed Authorityfor permissionto purchasethe Iand allotted to both Sardara and Ganesha Ci The Prescribed Authorityallowed the appellantto purchase the Iand I 08 allotted to Ganesha and Sardara vide order dated 171981 Devi Lal and Nanak filed the presentsuit praying that as the 7 order dated 172 1981 has been obtained by perpetuating a fraud it Z should be declared null and void It was pleadedthat the appeilanthad 0a concealed the fact that Sardara dies issueless and unmarried his rightsas a reesettled tenant were inherited by Ganesha and after the demise of Ganesha the rightto purchasethe suit Iand devoived upon the appellant respondentno 1 and Nanak deceased in equalshares The appellanton the other hand claims that he is entitledto inherit the rightsof Sardara as his adoptedson and the rightsof Ganesha as he alone attorned as a tenant to the Iandlord As referred to in the narrative of facts the courts below have decreed the suit and dismissed the appealby holdingthat the order dated 17 02 1981 was obtained by the appellantby perpetuating a fraud as apai1from concealingthat Ganesha was survived by two other sons the appellantposedas the son of both Sardara and Ganesha The Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 288 C RegularSecond AppeaiNo09 of 2006 9m objectionthat the jurisdictionof civil courts is barred was negativedby holdingthat as the order passedbythe prescribedauthority is a nullitythe civil courts are vested withjurisdiction to declare it null and void Before proceeding to answer the questionsof Iaw that have been posed it would be appropriateto answer the fourth questionfirst asit relates to the inheritance of the rightsof a resettled tenant The Punjab Act providesthat a small Iand owner may seek ejectmentof his tenant 0 subjectto the resettlement of such tenant on surplusarea Sardara and C Ganesha were admittedlyejectedfrom the Iandbelongingto a small Iand I C5 owner and were thereafter resettled on the suit Iand Section 18 of the I PunjabAct confers a righton a resettled tenant to purchasethe allotted Z Iand On the death of a rsettled tenant his rights as a tenant and his statutoryright to purchase the Iand would in the absence of any testamentarydeposItion devolve upon his natural heirs Neither the I PunjabAct nor the Haryana Act enacts any statutoryprovisionthat 08 prohibitsnatural heirs from inheritingthe rightsof a rsettled tenant 7 Section 8 01of the PunjabAct postulatesthat a tenancyshall not be Z affectedbythe death of a tenant exceptwhere he does not Ieave behind a male Iineal descendant or a mother or a widow Section 8 therefore cannot be read to set out a mode of inheritance at variance with general Iaw whether statutoryor customaryThe rightsof a reasettled tenant shall therefore devolve upon his IegaIheirs in accordance with the Iaw of inheritance applicable to such inheritance Section 59 of the Punjab TenancyAct does not applyto inheritance of a resettled tenants estate as it relates to the inheritance of the rightsof an occupancy tenant Even if Section 80f the PunjabAct is read as prescribing a mode of inheritance it includes all male Iineal descendants The partiesto the presentappealare Iineal male descendants and would inherit the rightsof Ganesha and Sardara in equal shares The fourth question of Iaw is answered Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 289 16 RegularSecond AppealNo 609 of 2006 4 0 accordingly The next quesOonsnamelyquesUons no 5 6 and 7 arise from the appellantsstand that he is entitledto succeed to the tenancyrightsof Sardara and Ganesha as he alone attorned to the Iandlord and is therefore entitled to purchasethe Iand allotted to them It is true that under the PunjabAct and the Rules framed thereunder a rsettled tenant IS requiredto execute a Kabuliatnama a pattanamaand is requiredto pay 0 rent to the Iandlord The appellantsclaim that he attorned to the Iandlord C must fail for failure to prove any kabuliatnama or pattanamarnuch Iess I C5 any evidence to infer paymentof any rent to the Iandlord It would be I necessaryto mention here that a mutation recordingthe appellantIll Z exclusive possession was sanctioned in his favour The mutation as held by the courts below is a nullityas it was sanctioned and attested r without notice to the other Iegalheirs of Ganeshalrthermore the entry I 08 was altered to the appellantsname byreference to reportno209 This reportdoes not assign any reason for alteringthe khasra girdawari 7 Another significantfact is that the order Ex4 dated 1 01 981 allowed Z theappellantto purchasethe suit Iand as the son of Sardara and Ganesha tl and not as the tenant of the Iandlord Itwould also requirepointedmention that in his writtenstatement the appellantclaimed to be the adoptedson of Sardara ThIs plea has been rejectedby the couns below and has not been pressedbefore this Court It is therefore apparentthat the appellant was neither the adoptedson of Sardara nor in possessionas a tenant The appellantwas in possessionas a jointtenant havingtenancyrights inherited from Sardara alongwith the respondents The courts below have recorded concurrent Ondingsof fact thal the appellantperpetuateda fraud and induced the prescribedauthority into passingan order in his favour by settingout false and incorrect facts It has been specificallynoticed that the order dated 101981 allowingthe Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 290 J RegularSecondAppeal1609of2006 41 appellantto purchasethe Iand records him as the son of both Ganesha and Sardar From these facts the courts beiow rightlyconcluded that the appellantwas guiltyof perpetuating a fraud The courts beiow therefore did not commit any error in holdingthat the order dated 17 1981 was obtained by perpetuating a fraud and therefore the jurisdictionof civii courts to examine the correctness of the order passed by the prescribed 1 C authorityis not barred it would be necessary to rnention here that fraud 0 vitiatesall acts and orders and where established renders an order null 0 and void In view of the concurrent findingof fraud recorded by the courts I C below it could not be held that the jurisdiction of a civil coui1 to examine a I pleaof fraud is barred bySection 26 of the HaryanaAct Reliance placed Z by the appellanton the judgmentreportedas State of Haryanav Vinod Kumar and others 1986 P LJ 161 is misplacecl This judgmentdoes not C Iaydown any principiethat a civil court cannot entertain a pleaof fraud I 08 even where the statute enacts a bar As a consequence the findingsrecorded by the courts below 7 that the order passedby the Prescribed Authorityunder the provisionsof Z the HayanaUtilisation of SurplusArea and other Areas Scheme 1976 Cl would aiso enure to the benefit of respondentno and Nanak cannot be faulted The argumentthat respondentno has abandoned his rightsas he shifted to Hanumangarhhas no basis in Iaw As to how the respondentswould be barred from inheritingthe tenancy rightsof his father remains unsubstantiated In view of what has been stated herein above the fourth fifth and sixth questionsoflaw are answered toyholdingthat the courts below did not commit any error In holdingthat the appeliant respondentno l and Nanak deceased are entitled to equalshares in the suit Iand The plea of the bar of Iimitation raised as the first questionof 1 Iaw was considered by the courts below and rejected The contradiction Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 11 291 4 RegularSecond Appeal No 609 of 2006 42 between the pleadingsand the depositionsas to the date of knowledge even if acceptedwould not render the suit time barred The argumentthat pursuantto Exa4 Nanak was allotted Iand and is therefore estoppedfrom filingthe presentsuit cannot be acceptecl The allotment in favour of Nanak relates to another pieceof Iand which was apparentlyallotted to him pursuantto separaterightsas a resettled tenant The argumentthat the State of HaryanaIS a necessary pany 0 disregards the fact that the matter in disputedoes not aHect the rightsof C the State of Haryanaas the orders passedby the courts below do not I C5 adverselyaffect the surplusarea that had vested in the State of Haryana I No other point or questionof Iaw has been urged Z In view of what has been stated hereinabove as no questionof Iaw much Iess a substantial questionof Iaw anses for consideration the C appealis dismissed with no order as to costs I a5 2009 1RAJIVEBHALLAI 1 nt JUDGE 7 Z GJ2 Rani Anita 2012.07.21 12: 24 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document