R.S.A.No. 1897 of 1991(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1897 of 1991(O&M) Date of decision: 23.5.2011 Mota Ram and others ......Appellants Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.L.N.Verma, Advocate, for the appellants. Mr. Deepak Jindal, DAG, Haryana. Mr.P.S.Jammu,Advocate for respondents No.4 to 8. **** SABINA, J. The plaintiffs had filed a suit for declaration challenging the order dated 16.6.1962, whereby the land belonging to the plaintiffs was declared surplus and the order of the Prescribed Authority dated 1.5.1980 to the extent of keeping the old surplus area intact. The plaintiffs also challenged the order of allotment dated 27.2.198 qua 162 kanals 12 marlas of land to defendants No.4 to 8. The case of the plaintiffs, in brief, was that they R.S.A.No. 1897 of 1991(O&M) 2 constituted a joint Hindu Family and the suit property was their coparcenary property. Plaintiff No.1 was the karta of the family. A family settlement-cum-partition had been effected between the parties of the coparcenary in the year 1957. A memorandum of this family settlement-cum-partition was duly entered in the family bahi of the plaintiffs on 16.7.1957. The said family settlement was duly incorporated in the revenue record in terms of Civil Court decree passed in the year 1969. The Collector had passed an order on 7.3.1961 qua surplus area in the hands of Mota Ram. Thereafter, the Collector reviewed the said order on 16.6.1962 allowing only 60 ordinary acres as permissible area to Mota Ram instead of 96.02 ordinary acres as allowed earlier vide order dated 7.3.1961. The order dated 16.6.1962 was illegal, null and void. Appeal filed before the Commissioner against the said order was dismissed being time barred in the year 1981. The said order was without jurisdiction, null and void. As a family settlement-cum-partition had been arrived at amongst the plaintiffs, the same was liable to be taken in consideration in terms of Section 8 of the Haryana Ceiling of Land Holdings Act, 1972 ('the Act' for short). Since the plaintiffs were not in possession of any surplus area, the same could not have been allotted to defendants No.4 to 8 vide allotment order dated 27.2.1981. The order dated 1.5.1980 of the Prescribed Authority, holding that the condition of old surplus area should remain intact, was without jurisdiction. The mandatory provisions of the Haryana Utilisation of Surplus and Other Area Scheme, 1976 had also been violated, while passing the order of allotment dated 27.2.1981. The R.S.A.No. 1897 of 1991(O&M) 3 plaintiffs approached the Sub Divisional Officer (Civil), Sirsa on 11.2.1985 for exempting their land from surplus pool but the Prescribed Authority had failed to pass any order on the said application. Defendants No.1 to 3, in their written statement, averred that Mota Ram was the owner of the entire land holding. In order to save his land from being declared surplus, Mota Ram had suffered a Civil Court decree in the year 1969 alleging that a family settlement had taken place in the year 1957. The Collector had rightly reviewed its order dated 7.3.1961 vide order dated 16.6.1962. Appeal against the said order had been dismissed by the Commissioner. Defendant No.3 had validly allotted the surplus land to defendants No.4 to 8 on 27.2.1981. The writ petition challenging the said order had been dismissed by this Court on 25.7.1985. Defendant No.4, in his written statement, took up similar pleas as those taken by defendants No.1 to 3. On the pleadings of the parties, following issues were framed by the trial Court:- "1. Whether the orders dated 16.6.1962 passed by Collector Suplus Area, order passed by Commissioner in the year 1981 and the order of the Allotment/ Prescribed Authority dated 27.2.1981 are null and void, illegal, without jurisdiction and are liable to be set aside as alleged in the plaint ? OPP 2. Whether there was a family settlement-cum-partition in the year 1957 as alleged, if so, to what effect ? OPP 3. Whether the suit is beyond limitation ? OPD R.S.A.No. 1897 of 1991(O&M) 4 4. Whether the Civil Court has no jurisdiction to try the present suit ? OPD 5. Whether the suit is bad for want of notice under Section 80 of C.P.C. ? OPD 6. Whether the suit of the plaintiffs is not maintainable in the present form ? OPD 7. Whether the plaintiffs have not approached the court with clean hands, if so, to what effect ? OPD 8. Relief. The trial Court, vide judgment and decree dated 26.7.1990, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal, which was also dismissed vide judgment and decree dated 6.9.1991 passed by the Additional District Judge. Hence, the present appeal by the plaintiffs. After hearing learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. During the course of arguments, learned counsel for the appellants has raised various issues but the main issue that requires consideration in this case is as to whether a family settlement-cum-partition had been arrived at between the plaintiffs in the year 1957 so that they could claim benefit of Section 8 (1) (a) of the Act. Section 8 (1) (a) of the Act reads as under:- “Certain transfer or dispositions not to affect surplus area:- 1) Save in the case of land acquired by the Union government or the State Government under any law for the time being in force or by a tenant under the pepsu law or Punjab law or by an heir by inheritance, no transfer or disposition of land in excess of - (a) the permissible area under the Pepsu law or the Punjab law after the 30th day of July, 1958; and” Thus, in case it stands established on record that the family settlement- cum-partition had been duly arrived at between the plaintiffs on 16.7.1957 then the same was liable to be taken in R.S.A.No. 1897 of 1991(O&M) 5 consideration, while determining the surplus area in the hands of Mota Ram. In fact, in case the family settlement-cum-partition alleged by the plaintiffs is established on record then Mota Ram would not be left with any surplus area. The family settlement-cum-partition is a bahi entry dated 16.7.1957 and has been proved on record as Ex. P-1. The plaintiffs, in order to prove the said writing, examined PW-2 Kundan Ram, scribe of the writing, Ex.P-1. The plaintiffs also examined PW-3, Mani Ram, attesting witness to the writing Ex.P-1, to establish its due execution. However, the said family settlement-cum-partition cannot be said to be a genuine document. A perusal of the order dated 17.3.1961 passed by the Collector, Surplus Area, Ex.P-4, reveals that at that time, the family settlement-cum-partition Ex.P-1 was not set up by Mota Ram. A perusal of the order Ex.P-4 further reveals that the land owned by the land owner on 15.4.1953 was 108.81 ordinary acres (34 standard acres). The area under old tenants was 9.89 ordinary acres (3.09 standard acres). Consequently, the area of 2.90 ordinary acres in the hands of land owners was declared surplus after making necessary deductions and additions. The sale deed executed by the land owner, qua 20 bighas 17 biswas of land after commencement of the Act, was ignored while assessing the surplus area. The Collector, Surplus Area reviewed the order Ex.P-4 vide order dated 16.6.1962 Ex.P-3. A perusal of the order Ex.P-3 reveals that as per the same, 38.92 ordinary acres (12.16 standard acres) were declared surplus in the hands of the land owner after R.S.A.No. 1897 of 1991(O&M) 6 making necessary additions and deductions. At the said time also the family settlement-cum-partition was not produced on record by the land owner. Ex.P-7 is the order dated 14.9.1981, whereby the appeal filed by Mota Ram against the order dated 16.6.1962 was dismissed being time barred. The writ petition, filed by Mota Ram bearing CWP No.2260 of 1985 challenging the order Ex.P-3 passed by the Collector, Surplus Area and order Ex.P-7 dated 14.9.1981 passed by the Commissioner, was dismissed vide order dated 25. 7.1985 by this Court. Thus, when the surplus area in the hands of Mota Ram was being determined, he did not produce the family settlement-cum- partition- bahi entry Ex.P-1 on record. The plaintiffs, in connivance with each other, filed civil Suit No.1869 of 1969 on 22.10.1969 seeking declaration that the sons of Mota Ram had become owners in possession of land measuring 663 kanals 4 marlas and the entries in the revenue record in the name of Mota Ram were wrong and were liable to be corrected in favour of the sons of Mota Ram. The said suit was decreed on 12.11.1969 on the basis of admission made by Mota Ram, vide judgment and decree Ex.P-15 and Ex.P-14 respectively. The family settlement-cum-partition alleged by the plaintiffs was never incorporated in the revenue record. Mutation was sanctioned in favour of the sons of Mota Ram on the basis of the Civil Court decree. In these circumstances, the Courts below rightly came to the conclusion that the document Ex.P-1 had been created by the plaintiffs at a later stage to save their land from being declared R.S.A.No. 1897 of 1991(O&M) 7 surplus. The family settlement-cum-partition, Ex.P-1, cannot be said to be a genuine document. Since the family settlement-cum-partition, Ex.P-1, relied upon by the plaintiffs cannot be said to be a genuine document, the other submission made by learned counsel for the appellants to the effect that the sons of Mota Ram were entitled to a hearing in view of decision of the Full Bench of this Court in State of Haryana and others vs. Vinod Kumar and others, 1986 PLJ 161 is without any force. The land in question at the relevant time was being held by Mota Ram and was liable to be considered for declaration of surplus area qua Mota Ram. The sons of Mota Ram at that point of time were not liable to be heard as alleged family settlement-cum-partition had not been set up by Mota Ram, when the surplus area proceedings were being held by the Collector, Surplus Area. The argument raised by the learned counsel for the appellants that the Collector, Surplus Area could not review his earlier order can also not be interfered with by the Civil Court as the writ petition bearing No. 2260 of 1985, filed by plaintiff Mota Ram in this Court, challenging the orders Ex.P-3 and Ex.P-7, was dismissed on 25.7.1985. The jurisdiction of the Civil Court was barred in the present case as Mota Ram, the big land owner had availed his appropriate remedy up to this Court. In case the sons of Mota Ram had been successful in establishing that the land had been partitioned then of course they had a right to be heard at the time of declaration of surplus area but since the plaintiffs have failed to establish the family settlement-cum-partition, the sons of R.S.A.No. 1897 of 1991(O&M) 8 Mota Ram were not liable to be heard by the Collector, Surplus Area, while declaring the surplus area in the hands of land owner Mota Ram. The land, which had been declared surplus in the hands of Mota Ram, was liable to be allotted by the competent authority. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 23, 2011 anita