RSA No.1053 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1053 of 1993 Date of Decision: 30.04.2009 Smt.Gopi Devi & Ors. ..Appellants Vs. Dharamshala Lal Makhram Dass & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Akshay Bhan, Advocate, with Mr.Santosh Sharma, Advocate, for the appellants. None for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 1.2.1993 passed by learned lower appellate court vide which RSA No.1053 of 1993 2 suit filed by the plaintiff/respondent seeking permanent and mandatory injunction restraining the defendant/appellants from obstructing or demolishing 27½ feet rasta being used by the plaintiff/respondent, stands decreed. Plaintiff/respondent brought a suit on the pleadings that originally land was purchased by Mukhram Dass, the predecessor-in- interest of the plaintiff from defendants No.10 to 14 vide registered sale deed dated 6.8.1962. This land also include land in dispute i.e. 27½ feet passage adjoining the main land towards the east. After the purchase plaintiff's predecessor-in-interest constructed a Dharmshala along with windows, ventilators etc. and since then land in dispute was being used as a passage. Plaintiff claimed that they had acquired easement right. Defendants No.10 to 14 moved the Director, Consolidation of Holdings. Director, Consolidation of Holdings without notice to the predecessor-in-interest of the plaintiff ordered the demolition of the passage. Order dated 31.1.1966 was said to be illegal, null and void and against law and not binding on the rights of the plaintiff/respondent. Defendants No.10 to 14 after the order dated 31.1.1966 sold the land in dispute along with adjoining land to defendants No.1 to 9 by way of registered sale deed dated 3.6.1981. The sale deed was also said to be illegal, null and void and against law and facts. The case set up by the plaintiff was that in the garb of the sale deed, defendants No.1 to 9 were taking steps to block the passage. It was further the case of the plaintiff/respondent that in spite of request, defendants No.1 to 9 were RSA No.1053 of 1993 3 adamant to block the passage. The suit was contested by raising preliminary objections regarding locus standi, cause of action, estoppel and that the plaintiff not being a legal entity was not entitled to maintain the suit. The suit was said to be barred by the principles of res judicata, and that, the suit was not properly valued for the purpose of court fee and jurisdiction. The suit was also, said to be bad for want of sanction, under section 92 of the Code of Civil Procedure and for non-compliance of Order 1 Rule 8 of the Code. The suit was claimed to be time barred. On merit, ownership of the plaintiff by virtue of sale deed dated 6.8.1962 was denied. It was pleaded that by way of sale deed land in dispute was not purchased. It was also denied that the disputed land was a path. It was claimed that the order passed by the Additional Director was legal and valid as also the sale deed dated 3.6.1981. In the replication the plaintiff reiterated the stand taken in the plaint and denied that of the written statement. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- 1. Whether the order passed by Additional Director Consolidation dated 31.1.1966 is against law, facts and not binding on the rights of the plaintiff as alleged in the plaint? OPP 2. Whether the registered sale deed dated 3.6.81 is against law and facts and not binding on the plaintiff as alleged? RSA No.1053 of 1993 4 OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the plaintiff is a legal entity and can sue in its own name? OPP 7. Whether Om Parkash son of Dev Karan Dass has right or authority to file the suit? OPP 8. Whether the suit is barred by principles of res judicata? OPD 9. Whether the suit is bad for want of sanction under section 92 CPC? OPD 10. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD 11. Whether the suit is bad for non-joinder of necessary parties? OPD 12. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD 13. Relief. It may be pertinent to mention here that while plaintiff adduced evidence in support of his case, the defendant-appellants after having been RSA No.1053 of 1993 5 given number of opportunities led no evidence and their evidence was closed by order. The learned trial court held that the passage in dispute was not part of the land purchased by the predecessor-in-interest of the plaintiff. It was also held that the order dated 31.1.1966 was passed by Additional Director Consolidation, after hearing the affected parties and therefore, could not be said to be null and void. It was also held that the challenge to the order was barred by limitation. Learned trial court was pleased to hold, that the plaintiff had not chosen to exhaust its remedy under the Act to challenge the order passed by the Additional Director of Consolidation. Issue No.1 was thus decided against the plaintiff. In view of the findings on issue No.1, holding the order of Additional Director (Consolidation) to be valid, issue No.2 was decided in favour of the appellant/defendants. On issue No.3 it was held that the suit is not maintainable. On issue No.4 it was held that the plaintiff/respondent had no locus standi to file the suit. On issue No.5 it was held that the plaintiff has no cause of action to maintain the suit whereas issues No.6 to 12 were decided against the defendant/appellants being not pressed. In view of the findings, the suit filed by the plaintiff/respondent was ordered to be dismissed. Respondent/plaintiff preferred an appeal against the judgment and decree passed by the learned trial court. Findings recorded by the learned trial court have been reversed by learned lower appellate court by observing as under:- RSA No.1053 of 1993 6 “ It is admitted case that the defendants did not lead any evidence whereas the plaintiff Dharamshala led evidence. There is sale deed Ex.P.2 vide which Mukhram Dass purchased the land from the owners over which lateron the Dharamshala was constructed. In sale deed Ex.P.2 which is dated 6.8.1962 there is a mention that there would be a passage of the width of 27½' on the eastern side of the land which was purchased by Mukhram Das for the construction of Dharamshala. The case of the defendants is that thereafter the parties moved the Additional Director, Consolidation for the demolition of this passage and as both the parties who appeared before the Additional Director agreed for the demolition of the passage,so the Additional Director vide order dated 31.1.1966 ordered for the demolition of the passage which is now in dispute. It is admitted fact that in the said application the present plaintiff was not a party and before the deciding the said application the Additional Director did not give any notice. The sale deed Ex.P.2 is the basic document and it is clearly mentioned that there would be a passage of 27½' width towards the eastern side and Mukhram Dass purchased the land from the owners for the construction of the Dharamshala with the understanding that this passage would continue to exist. Ram Lal, brother of defendant No.1, moved the application under section 42 of the East Punjab Act (1) Order 1948 before the Addl. Director Consolidation of RSA No.1053 of 1993 7 Holdings for the change of passage from path No.440 and in that application the parties mutually agreed that an alternative path in killa No.251/7.14, in front of the existing path in between killa No.251/4/1 and 4/2 would be provided. In the order passed by the Addl. Director dated 31.1.1966 it is mentioned that this application is time barred but the Additional Director entertained the said application because the parties to that litigation mutually agreed before the Addl. Director for the change of passage and the Addl. Director made the changes in the path as prayed for on the compromise of the parties to the said case and in this manner the application was not decided on merits rather it was decided because the parties entered into compromise although it was time barred application. However, the plaintiff was not a party and no notice was given to him before deciding the said application. When there is a clear cut mention of the existing of path towards the eastern side of the property purchased by Mukhram Das for the construction of the Dharamshala the Additional Director was duty bound to have given notice to the owner of the Dharamshala before deciding the application of the demolition of the passage. However, no notice was given and the Additional Director, instead of dismissing the application being time barred allowed the application because both the parties entered into compromise. However, the said decision is not binding on the rights of the RSA No.1053 of 1993 8 plaintiff. Since the property was sold by the owners to Mukhram Das with clear cut understanding that there would a passage of 27½' on the eastern side so the defendants could not have demolished the same by their mutual consent. The window, ventilators etc. of the Dharamshala existed on the eastern side since its in inception so certainly the Dharamshala has acquired the easementary right. The lower court has not properly appreciated the evidence led by the plaintiff whereas the defendants did not lead any evidence in support of their case despite availing several opportunities. The lower court has wrongly dismissed the suit of the plaintiff. There is merit in the appeal. So the same is hereby accepted. Suit of the plaintiff is decreed and the defendants are restrained from closing the passage of width of 27½' existing on the eastern side of the Dharamshala and if during the pendency of the suit any construction has been raised, the contesting defendants are hereby ordered to remove the said construction forthwith.” Learned counsel for the appellants contends that this appeal raises the following substantial questions of law:- 1. Whether the suit filed by the plaintiff to challenge the order dated 31.1.1966 was barred under section 44 of the Consolidation of Holdings Act? 2. Whether the suit filed by the plaintiff was barred by RSA No.1053 of 1993 9 limitation? 3. Whether the learned lower appellate court committed an error in holding, that the plaintiff/respondent had acquired, easementary right without issue having been framed? In support of substantial questions of law raised, learned counsel for the appellants contends that the order dated 31.1.1966 was passed by the Additional Director of Consolidation on an application moved by the owners of the property and the order was passed after hearing the affected parties. It was not open to the plaintiff to challenge the order passed by the Additional Director Consolidation in view of the bar contained under section 44 of the Act. The Civil Court did not have jurisdiction to entertain and try the suit. It is also the contention of the learned counsel for the appellant that though the order impugned was passed on 31.1.1966 the suit was filed in the year 1983 and therefore, it was prima facie barred by limitation, as the suit for declaration to challenge an order could be filed only within a period of 3 years from the date of order. It is further the contention of the learned counsel for the appellant that the learned lower appellate court, committed an error in decreeing the suit by holding that the plaintiff had easementary right of use of passage without there being any issue. On the contentions raised, learned counsel for the appellants contends that the judgment and decree passed by the learned lower appellate court deserves to be set aside by RSA No.1053 of 1993 10 answering the substantial questions of law in favour of the appellants. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellanta. It may be noticed, that one of the pleas raised by the respondent/plaintiff was that they were entitled to use of passage by way of easementary right. Right of easement was to be adjudicated, only by the civil court and therefore, it could not be said that the jurisdiction of the civil court was barred under section 44 of the Act. As regards the bar to challenge the order dated 31.1.1966, needless to say that the civil court can always entertain a suit against an order passed by the authorities, under the statute if it acts beyond the jurisdiction vested in it. In the absence of path having been provided under the scheme of consolidation or any order under the Act it was not within jurisdiction of the Additional Director, Consolidation to have passed an order of demolition. It is no body's case that path in dispute was left under the consolidation scheme which was required to be modified or changed. Jurisdiction of the civil court cannot be barred to challenge an order which is patently without jurisdiction and passed by an authority in exercise of jurisdiction, which was not vested in it. The plea of the learned counsel for the appellant that the suit was barred by limitation also cannot be accepted. The suit filed by the plaintiff was for injunction and the cause of action accrued to the plaintiff/respondent only when the path was being blocked in pursuance to the order of 1966. The plaintiff was not party, nor they were issued any notice. Thus, it could not be said that the suit was time barred. RSA No.1053 of 1993 11 The parties were aware of their respective case, and led evidence, therefore, mere non-framing of issue cannot be a ground to challenge the relief granted. The plaintiff respondent had specifically claimed a right of easement and led evidence in support, which went unrebutted, as the defendant-appellants failed to lead any evidence, in spite of availing number of opportunities. The substantial questions of law raised are answered against the appellants. In view of findings recorded, there is no merit in the appeal and is ordered to be dismissed, but with no order as to costs. 30.04.2009 (Vinod K.Sharma) rp Judge