R.S.A.No. 654 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 654 of 2009 (O&M) Date of decision: 8.10.2009 Teki @ Tek Chand and others ......Appellants Versus Narender Nath and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kulbhushan Sharma, Advocate, for the appellants. **** SABINA, J. Plaintiff Bhim Singh filed a suit for declaration with consequential relief of permanent injunction which was dismissed by the Civil Judge (Jr.Divn.), Palwal vide judgment and decree dated 21.3.2002. In appeal, the said judgment and decree were upheld by the Additional District Judge (Ad hoc) cum Presiding Officer, Fast Track Court, Faridabad vide judgment and decree dated 25.4.2008. Hence, the present appeal by the legal representatives of the plaintiff. R.S.A.No. 654 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts of the case are that on 25.7.1992 Bhim Singh, plaintiff instituted suit for declaration with consequential relief of permanent injunction against Narender Nath and others, defendants. In the suit plaintiff inter alia pleaded himself to be in cultivating possession of agricultural land bearing Khewat No.527/493, Khatoni No.567, Rect. No.14, Killa No.1/1 (3- 8), 10/3 (3-13), Rect. No.15, Killa No.5 (7-9), 6 (8-0), total measuring 22 kanals 10 marlas, village Khajurka, Tehsil Palwal, District Faridabad as tenant under defendants. Defendants filed suit in the Court of Assistant Collector Ist Grade, Palwal titled as ' Narender Nath and others versus Bhim Singh' for ejectment claiming that they are owners and the plaintiff is cultivating the suit land at tenancy of Chakota 35 kg. per kanal per year. They were small land owners as on 15.4.1953 and 24.1.1971 and they want to cultivate the suit land themselves. The learned Court of Assistant Collector Ist Grade Palwal, through order dated 15.1.1987 was pleased to dismiss the suit. The court had held that plaintiffs did not accept rent directly and were accepting the same through court and refused same in the year 1981-82 and the plaintiffs (present defendants) R.S.A.No. 654 of 2009 (O&M) 3 had sufficient land and are being land owners. The defendants preferred appeal, which was accepted through order dated 30.7.1988 and order dated 15.1.1987 was set aside. Defendants after being unsuccessful in the ejectment filed case under Section 9 of the Punjab Land Tenure and Security Act, 1953 and an application under Section 14-A (ii) of the Act on 7.8.1987 on Form-N under Rule 22 of the Punjab Land Tenure and Security Rules, 1956. In application defendants claimed rent outstanding against plaintiff at the rate of 35 kg per kanal per year for Kharif 1986 and Rabi 1987. The Assistant Collector Ist Grade, Palwal issued Form-N on 17.8.1987 mentioning rent due from plaintiffs for Kharif 1984 and Rabi 1985 at the rate of 35 kg. per kanal. Defendants by fraud misrepresented plaintiff and wrongly showed his attendance. In fact, plaintiff never appeared before the learned Court of Assistant Collector Ist Grade Palwal on 17.9.1987, 19.10.1987 and 27.10.1987. Signatures as Bhim Singh on proceedings dated 17.9.1987 were forged. The learned Assistant Collector Ist Grade Palwal decided application ex parte and passed ejectment order dated 4.12.1987 illegally for non payment of rent. The ex parte proceeding dated 27.10.1987 were not as per law. No effective service on plaintiff was effected. In fact, plaintiff R.S.A.No. 654 of 2009 (O&M) 4 did not sign being old and used to emboss his thumb impression. So, the ex parte proceedings were liable to be set aside. The order of Collector, Palwal dated 20.5.1988 in appeal and order dated 15.11.1991 passed by Commissioner, Gurgaon, Camp at Faridabad are illegal as it was held that plaintiff had option to get ex parte order set aside. As per settled law an aggrieved person can get set aside ex parte order by preferring appeal or a suit before the Court. Plaintiff has always been ready and willing to pay rent to defendants but defendants intentionally avoided the same. The proceedings under Section 14 A (ii) of the Punjab Land Tenure and Security Act 1953 were an abuse of process of Court. The plaintiff had deposited the rent for the year 1981-82 and defendant received through order dated 24.11.1982. The rent for subsequent year Kharif 1982 to Rabi 1985 had also been deposited in Treasury under order dated 2.9.1986 passed by Assistant Collector Ist Grade Palwal as defendants had refused to accept the same in court. Thus, plaintiff had deposited Rs.3,709.92 paise in Govt. Treasure as per order dated 2.9.1986. Rent after Rabi 1984 onwards was also deposited by the plaintiff. Once plaintiff had been ejected by the Court of Collector, Faridabad on 30.7.1988 in appeal preferred by R.S.A.No. 654 of 2009 (O&M) 5 defendants then filing of application for ejectment of plaintiff on 7.8.1987 for non payment of rent on Form-M is abuse of process of court, so application filed on 7.8.1987 for ejectment was not maintainable and the ex parte order dated 4.12.1987 was illegal and liable to be set aside. The revenue Courts while passing of order of ejectment of plaintiff had violated the mandatory provisions of law by not determining the compensation payable to plaintiff. The plaintiff is in cultivating possession of the suit land, defendants are threatening the plaintiff illegally. Plaintiff requested defendants to admit his possession as tenant but defendants refused the same on 20.6.1992. Hence, this suit. In the suit plaintiff prayed for a decree of declaration to the effect that orders dated 4.12.1987, 20.5.1988, 30.7.1988 and 15.11.1991 passed by revenue courts are illegal, null and void and the relationship between the plaintiff and defendants still exists. As a consequential relief a decree for permanent injunction restraining defendants from interfering in the peaceful possession of the plaintiff was prayed. 3. On notice, defendants filed written statement by taking preliminary objections qua jurisdiction, resjudicata, suppression of material facts, locus standi and maintainability. On merits, it was denied that plaintiff is R.S.A.No. 654 of 2009 (O&M) 6 tenant over the suit land and is in possession for the last 40 years. Filing of regular suit titled as 'Narender Nath versus Bhim Singh' for ejectment of plaintiff and passing of orders dated 15.1.1987 and 30.7.1988 were stated to be as matter of record. It was wrong to say that learned appellate Court did not consider facts and circumstances of the case before passing of ejectment order in favour of defendants and against plaintiff in respect of the suit land. It was wrong that the defendants exercised fraud over the court of Assistant Collector, Ist Grade, Palwal. The allegations of the plaintiff regarding non appearance on relevant dates were wrong. The order of ejectment dated 4.12.1987 was legal. The ex pare proceedings dated 20.10.1987 were as per law. It was wrong that orders dated 20.5.1988 and 15.11.1991 passed by Collector, Palwal and Commissioner in respect of ejectment of plaintiff vide order dated 4.12.1987 were illegal. The plaintiff had no right to file present suit. The judgments and orders of ejectment of plaintiff from the land are illegal. It was wrong that defendants are taking possession of the suit land forcibly. As a matter of fact defendant applied for execution of order of ejectment in the Court of Assistant Collector IInd Grade, Palwal. Other R.S.A.No. 654 of 2009 (O&M) 7 contents of plaint were denied. Prayer for dismissal of suit with costs was made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is in cultivating possession of the suit land as a tenant as alleged? OPP 2. Whether the order passed by the revenue authorities dated 4.12.1987, 20.5.1988, 30.7.1988 and 15.11.1991 are illegal, null and void and not binding on the rights of the plaintiff as alleged? OPP 3. Whether the civil Court has no jurisdiction to try the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit of the plaintiff is not maintainable in the present form? OPD 7. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Plaintiff Bhim Singh filed the suit that the orders passed by the Revenue Courts were illegal, null and void. The relationship of R.S.A.No. 654 of 2009 (O&M) 8 tenant and landlord still existed between the parties. Learned trial Court in para Nos.23 and 24 of the impugned judgment has observed as under:- “23. The order dated 15.1.1987 is proved on record as Ex.P 28. This order was passed by Assistant Collector, Ist Grade and it clearly mentioned that plaintiff filed his reply in the said case and issues were also framed. The said case filed by defendants was decided on the basis of evidence. As the said case of defendants was dismissed, they filed an appeal before Collector, Faridabad. The order of Collector, Faridabad dated 30.7.1988 is also proved on record as Ex.P 16. The appeal was accepted by the Collector and defendants were held as small land owners. The order dated 4.12.1987 for ejectment of plaintiff for non-payment of rent was passed against him and the said order was passed ex parte as plaintiff failed for appear before A.C.IInd Grade after appearing on one day. Plaintiff stated that the order dated 4.12.1987 is illegal, null and void and beyond jurisdiction. He has stated in the pleadings that he never appeared before Asstt. Collector, Ist Grade on either of the dates i.e. 17.9.87, 19.10.87 and 27.10.87. He has stated about the signature marked in the proceedings on 17.9.87 is the R.S.A.No. 654 of 2009 (O&M) 9 forged signatures but none of the witnesses of plaintiff has stated about anything to the effect that plaintiff never appeared before Asstt. Collector Ist Grade, Palwal. In his cross-examination, PW2 has stated that the order dated 4.12.87 was obtained by defendants by exercising fraud and the order is illegal but he has not stated anything about the circumstances leading to the fraud as stated in the pleadings. In case of fraud, the same is required to be proved specially in a civil case too but in the present case, plaintiff has not produced any evidence to prove that the order dated 4.12.87 was obtained by exercising fraud by defendants. Learned Appellate Court in para No. 18 of the impugned judgment has observed as under:- “ Perusal of the aforesaid oral and documentary evidence evidently shows that plaintiff Bhim Singh was in cultivating possession of the suit land. The learned Court of Collector, Faridabad through order dated 30.7.1988 copy of which is Ex.P-16 accepted defendants' appeal and set aside the order dated 15.1.1987 of the learned Court of Assistant Collector Ist Grade and ordered ejectment of the plaintiff. Application on Form-M for ejectment of plaintiff for non- payment of rent for Kharif 1985 and Rabi 1986 Ex.P-13, R.S.A.No. 654 of 2009 (O&M) 10 notice for deposit of rent for Kharif 1984 and Rabi 1985 Ex.P-14 had led to passing of ex parte ejectment order dated 4.12.1987. Ejectment order dated 4.12.1987 was upheld by the court of Collector Faridabad through order dated 20.5.1988 Ex.D-1 and by Commissioner, Gurgaon Division, Gurgaon through order dated 15.11.1991 Ex.P-17. So, it is evident that plaintiff had been contesting the proceedings before the revenue Courts. Despite mentioning of different periods of arrears of rent in Form-M, notice and ejectment order as well as appearance or non appearance or ex parte proceedings against Bhim Singh leading to passing of execution order dated 4.12.1987 and subsequent orders do not affect the order of ejectment dated 30.7.1988 which does not suffer from any defect. The ratio of various judgments regarding jurisdiction of civil court to entertain civil suits despite specific bar, scope of provisions of Section 14-A of the Punjab Security of Land Tenures Act and provisions of the Punjab Occupancy Tenants (Vesting of Property Rights) Act, 1952, drawing of adverse inference for non appearance in witness box etc. referred to by the learned counsel for the appellant and respondents are not in doubt. However, in view of aforesaid material facts their critical R.S.A.No. 654 of 2009 (O&M) 11 analysis is not called for. As such, the arguments of the learned counsel for the appellant being devoid of merits are unsustainable. Accordingly, the findings of the learned trial Court on all issues are upheld.” Thus, the ejectment order passed against the plaintiff in the year 1987 by the Assistant Collector, Ist Grade was upheld in appeal by the superior authority. The appellants had failed to establish that the said proceedings were a result of fraud or misrepresentation. In these circumstances, the Courts below had rightly dismised the suit of the plaintiff-appellants. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 08, 2009 anita