RSA No.639 of 1980 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.639 of 1980 (O&M) Date of decision: 18.02.2010 Sarupa (died) through LRs and others ............Appellants Versus The Panchayati Akhara and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Arun Jain, Sr. Advocate with Mr. Vishal Goel, Advocate for appellant. Mr. J. S. Wasu, Sr. Advocate with Mr. Parveen Chauhan, Advocate for appellant. Mr. Arun Palli, Sr. Advocate with Mr. Tushar Sharma, Advocate and Mr. Jai Bhagwan, Advocate for respondents. Mr. Sangeeta Dhanda, Advocate for respondents. -.- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. By way of present appeal, defendants/appellants are assailing the judgment and decree passed by the learned trial Court dated 18.8.1977 decreeing the suit of the plaintiff/respondents, declaring order of the Collector (Agrarian) dated 15.3.1961 and all subsequent orders passed as illegal, void and without jurisdiction, and therefore, cannot affect the RSA No.639 of 1980 (O&M) -2- rights of the plaintiff and further holding that plaintiff is entitled to recover land in dispute from the defendants. First Appellate Court's judgment dated 08.02.1980 thereby dismissing the appeal by confirming the findings recorded by the trial Court is also under Challenge in this appeal. 2. The brief facts of the present case are that Panchayat Akhara Kala Bara Udasian (plaintiff) was holding land measuring 1468 Bighas 3 Biswas in the year 1953 in village Bhawani Khera, Tehsil Thanesar. Collector, Agrarian vide his order dated 15.3.1961 declared 145 st. acres of land as surplus, leaving 30 st. acres for self-cultivation of the Akhara. Plaintiff by filing a suit challenged the order of the Collector and contended that order was passed ex-parte and therefore, the same is illegal, void and without jurisdiction. Plaintiff also contended that area measuring 356 bighas 3 biswas being Banjar Qadim on 15.4.1953 i.e. the appointed day, did not fall within the definition of 'land' as described under the Punjab Security of Land Tenures Act (hereinafter referred to as the Act) and the same was wrongly considered for the assessment of surplus area. Plaintiff also challenged the order of the Authority allowing application under Section 18 of the Act filed by defendants 4 to 22 for the purchase of suit land being the tenants. On notice, defendants contested the suit. In the written statement filed by Haryana State, certain preliminary objections were taken, including the one in regard to suit being barred by time. Defendants contended that order of Collector RSA No.639 of 1980 (O&M) -3- dated 15.3.1961 and subsequent order passed by S.D.O.(Civil) and Naib Tehsildar were legal and they cannot be challenged in Civil Court. On the pleadings of the parties, the following preliminary issues were framed on 6.8.1968:- i) Whether the suit is bad for multifariousness? ii) Whether the relief sought in the plaint has not been correctly assessed for purposes of court-fee and jurisdiction? iii)Whether the full particulars of the land have not been mentioned in the plaint? 3. Thereafter, on 15.3.1969, the following issues on merits were framed:- i) Whether Mahant Darshan Dass is competent to bring the suit on behalf of the plaintiff? ii) Whether the impugned order dated 15.3.1961 passed by the Collector (Agrarian) Karnal is bad and illegal for the reasons stated in para No.6 of the plaint? iii)Whether the orders granting proprietory rights to defendants No.4 to 15 referred to in para No.8 of the plaint are also illegal, void and without RSA No.639 of 1980 (O&M) -4- jurisdiction? iv)Whether the suit is within time? v) Whether the Civil Court has jurisdiction to entertain and try the suit? vi)Whether no valid notice u/s 80 C.P.C. was served by the plaintiff? vii)Whether the suit is bad for multifariousness? viii)Whether the relief sought in the plaint has not been correctly assessed for purposes for purposes of court-fee and jurisdiction? ix)Relief.” 4. Learned trial Court while deciding the issue No.2 has observed that no notice on the land owner, which is a condition precedent for exercising jurisdiction to declare surplus area of any land owner as provided under Rule 6(3) of the Punjab Security of Land Tenures Act, 1953, was ever served on the plaintiff. It was further observed by the learned trial Court in issue No.2 that area measuring 354 bighas 3 biswas was banjar qadim on 15.4.1953 stands proved from the copy of jamabandi Ex.P.14 for the year 1944-45 and the copy of khasra girdawaris relating to Rabi 1953 which is Ex.P15 and the said area was also included while assessing the surplus area of the plaintiff, while that could not have been included while assessing the RSA No.639 of 1980 (O&M) -5- surplus area in view of the judgment reported in LLT 1969 page 1 titled as Amar Surjit Singh vs. The Punjab State and others. Learned trial Court has recorded clear cut finding that order passed by the Collector (Agrarian) dated 15.3.1961 was illegal and without jurisdiction. 5. Learned trial Court while dealing the issue No.4, pertaining to question of limitation has held as under:- “In 1972 PLJ page 297 (The State of Punjab vs. Sh. Bhagwant Singh) it was held that an order passed by an authority that has no jurisdiction to pass void-abinitio and cannot adversely affect interest in the property. In case of a void order, it is not necessary that a party against whom it is made to have it set aside and he can wait till an attempt is made to interfere with his rights in the property covered by the order. In this case the order passed by the Collector (Agrarian) was void, abinitio without jurisdiction. The order passed without jurisdiction is a nullity and can be challenged at any time. As the order made by the Collector was without jurisdiction, I have no hesitation to hold that the suit filed by the plaintiff, is within RSA No.639 of 1980 (O&M) -6- limitation, as no fixed period of limitation has been provided under the Limitations Act. I therefore, decide this issue in favour of the plaintiff.” 6. Learned trial Court while deciding the issue No.5 pertaining to the jurisdiction of the Civil Court to entertain and try the suit has observed as under:- “In 1976 P.L.J. page 481 (Kulbhushan v/s Faquiria) it was held that where an order made by the Collector (Agrarian) is without jurisdiction, Section 25 of the Punjab Security of Land Tenures Act is not applicable and the Civil Courts have got jurisdiction to entertain and try the suit. As I have discussed above, that the order passed by the Collector (Agrarian) was without jurisdiction and therefore, I hold that the Civil Court has jurisdiction to try the suit, therefore, this issue is decided in favour of the plaintiff.” 7. The First Appellate Court agreed with the findings recorded by the trial Court and dismissed the appeal. 8. In the second appeal, following four substantial questions of law were formulated:- (1)Whether the order declaring surplus area without notice to the owners- RSA No.639 of 1980 (O&M) -7- respondents was void or voidable in view of the Full Bench decision of this Court in 1970 P.L.J. 402 and the decision of the Supreme Court in 1977 C.L.J. 281. (2)Whether the order of the revenue authority u/s 18 of the Punjab Security of Land Tenures Act (hereinafter called the Act) allowing the purchase of suit land by the tenant-appellant could not be set aside by a Civil Court in view of Section 25 of the Act regarding bar of jurisdiction of Civil Court. (3)Whether the suit is within limitation, and (4)Whether the decree for possession of the suit land is maintainable against the appellants who are undisputedly tenants on the suit land. 9. Second appeal was earlier allowed vide judgment dated 29.4.1998, however, Hon'ble Apex Court vide judgment dated 11.03.2004, set aside the judgment passed by this Court allowing the second appeal with the direction to this Court that this Court shall decide the second appeal afresh after recording the findings on all the substantial questions of law formulated. RSA No.639 of 1980 (O&M) -8- 10. I have heard learned Counsel for the parties and perused the record. 11. First substantial question of law is as under:- i) Whether the order declaring surplus area without notice to the owners-respondents was void or voidable in view of the Full Bench decision of this Court in 1970 P.L.J. 402 and the decision of the Supreme Court in 1977 C.L.J. 281? 12. Plaintiff has challenged the order dated 15.3.1961 and all subsequent orders declaring 145 standard acres of the land as surplus land on the ground that:- “i) the said order passed by the Collector Karnal is illegal, void and without jurisdiction on the grounds that the said order was passed ex-parte and that ex-parte could not be taken against the Akhara without appointing a property guardian as the position of the Akhara is that of a minor according to law. ii) an area measuring 356 bighas 3 biswas of the plaintiff Akhara, being of the nature of Banjar Qadim on 15.4.1953, did not fall within the definition of word 'land' as described under the Punjab Security of Land Tenures Act and that the same was wrongly considered for the assessment of the surplus area. (iii) similarly, it is claimed that half of the land with the Akhara on 15.4.1953 was in possession of old tenants and that the same also could not be included RSA No.639 of 1980 (O&M) -9- for assessment of the surplus land with the plaintiff Akhara. iv) it is claimed by the plaintiff that there were four Mahant of the plaintiff Akhara at the commencement of the Act ibid, and no notice was personally served upon any of them and on this score alone the entire proceedings by the Collector (Agrarian) while declaring 145 standards acres of the land of the plaintiff as surplus are void. 13. Learned trial Court as mentioned hereinabove decreed the suit after discussing the entire evidence on record that no notice was ever served on any Mahant, hence, order was passed ex-parte, which could not have been passed without notice. Learned trial Court also observed that land Banjar Qadim could not be included in the land while assessing the surplus land. Full Bench of this Court in the matter of Dhaunkal v. Man Kauri reported in 1970 P.L.J. 402, in paragraph 9 of the judgment has observed as under:- “In the present case the Surplus Area Collector had the jurisdiction to decide the question of surplus area, if any, with respondent 1, and he has committed breach of statutory rules in not hearing the appellant, which, in the approach as above, does not render the order of the Surplus Area Collector void or a nullity, but only voidable and liable to be quashed or set aside at the instance of the aggrieved party, in this case the RSA No.639 of 1980 (O&M) -10- appellant.” 14. The Hon'ble Supreme Court in the matter of Chet Singh v. State of Punjab etc. reported in 1977 CLJ (Civil) (S.C.) 281, in paragraph 3 has observed as under:- “3. The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being heard due to his illness, seems to us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could not be ignored as “non est”. The view taken in Harbhajan Singh's case (supra) would not apply to the instant case although Section 4 of the Act does not contain a power of review orders which are “non est” can be ignored at any stage.” 15. In view of the dictum of this Court and Hon'ble Supreme Court (supra), order dated 15.3.1961 and all subsequent orders cannot be said to be void or nullity, but illegal, voidable and liable to be quashed and set aside at the instance of the aggrieved party. Substantial question No.1 is answered accordingly. 16. Substantial question No.2 is as under:- RSA No.639 of 1980 (O&M) -11- ii) Whether the order of the revenue authority u/s 18 of the Punjab Security of Land Tenures Act (hereinafter called the Act) allowing the purchase of suit land by the tenant-appellant could not be set aside by a Civil Court in view of Section 25 of the Act regarding bar of jurisdiction of Civil Court? 17. Learned trial Court as well as learned First Appellate Court has held that suit is very well maintainable in the Civil Court and is not hit by Section 25 of the Punjab Security of Land Tenures Act, 1953. As held by both the Courts below, order declaring that surplus land was passed without any notice to the plaintiff and while assessing the surplus area land Banjar Qadim has also been included therein, which could not have been included while assessing the surplus area. Decision without mandatory notice and inclusion of Banjar Qadim land while assessing the surplus area, amounts to jurisdictional error and vitiate the proceedings and order passed therein. While answering substantial question of law No.1, this Court has held that order dated 15.3.1961 and all subsequent proceedings thereafter are illegal, voidable and liable to be quashed and set aside. It is well settled principle of law that any order or instrument which is either void or voidable can be rescinded/quashed/set aside or declared non est by the Civil Court. 18. In the matter of Sardara Singh, 1990(4) SCC 90, Hon'ble Apex Court has held that Civil Court's jurisdiction is open where action taken is without jurisdiction under any law. RSA No.639 of 1980 (O&M) -12- 19. In the matter of Dwarka Prasad Agarwal v. B.D. Agarwal reported in AIR 2003 S.C. 2686, Hon'ble the Apex Court in paragraph Nos.38 and 39 has held as under:- “38. It is now well-settled that an order passed by a Court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such. 39. There is another aspect of the matter which must also be taken notice of. A party cannot be made to suffer adversely either indirectly or directly by reason of an order passed by any Court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial.” 20. In the matter of Vali Mohamed Jamal Mansuri v. RSA No.639 of 1980 (O&M) -13- Vali Mohamed Suleman reported in AIR 1988 Bombay 64, Bombay High Court has held as under:- “An ex parte order of eviction of the tenant was passed under Section 41 of the Act. An application by tenant for setting aside the ex parte order of eviction on ground that a fraud had been practised and that he was not duly served was rejected. The tenant filed a suit for declaration that the order of eviction was null and void on ground that it was obtained by practising fraud; Held, that the suit was maintainable.” 21. Authorities under the Act has no jurisdiction to proceed to declare land surplus without mandatory notice. Moreover, authorities have no jurisdiction to assess Banjar Qadim land for the purpose of surplus land. Hence, suit is legally maintainable. 22. In my humble opinion, Section 25 of the Act shall bar the suit when authorities acted within its jurisdiction legally and not when authorities committed jurisdictional error by exceeding in its jurisdiction acting totally in violation of the Act. As in the present case, both the Courts below found that Banjar Qadim land legally cannot be included while assessing the surplus area and Collector went on deciding the matter without notice, hence, suit was very well maintainable in the Civil Court and was not barred by Section 25 of the Act. Substantial question No.2 answered accordingly. RSA No.639 of 1980 (O&M) -14- 23. Substantial question No.3 is as under:- iii) Whether the suit is within limitation? 24. Learned Counsel for the appellants argued that in the Limitation Act of 1908, limitation for suit under Article 95 to set aside a decree or order was three years and under the 1963 Act, as per Article 59, still limitation is three years. Hence, suit is barred by limitation. 25. Article 95 of the Limitation Act of 1908 reads as under:- “95. To set aside a decree Three When the fraud obtained by fraud, or for years becomes known other relief on the ground to the party of fraud. wronged.” 26. In the 1963 Act, Article 59 reads as under:- “59. To cancel or set aside Three When the facts an instrument or decree or years entitling the for the rescission of a plaintiff to have contract. the instrument or decree cancelled or set aside or the contract rescinded first become known to him.” 27. In my opinion, plaintiff is not claiming that decree or order under challenge is the outcome of fraud. Hence, period provided under Article 95 of 1908 of the Limitation Act has no application in the present case. In my humble opinion, limitation to file suit to set aside the decree or order was six years under Article 120 of 1908 of the Limitation Act which reads as under:- “120. Suit for which no Six When the right to period of limitation is years. sue accrues. RSA No.639 of 1980 (O&M) -15- provided elsewhere in this Schedule. 28. Article 59 covers all type of instrument or order whether obtained by fraud or otherwise. Hence, it can safely be said that after 1963 Act suit challenging the decree or order on any ground, shall be covered by Article 59 of the 1963 Act, for which period prescribed is three years from the date of first knowledge to the plaintiff. While as per 1908 Act, limitation was six years. 29. Section 30 of 1963 Act reads as under:- “30. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908 – Notwithstanding anything contained in this Act, - (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908)may be instituted within a period of [seven years] next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 (9 of 1908), whichever period expires earlier: [Provided that if in respect of any such suit, the said period of seven years expires earlier than period of limitation prescribed therefore under the Indian Limitation Act, 1908 (9 of 1908) and the said period of seven years together with RSA No.639 of 1980 (O&M) -16- so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 (9 of 1908), as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefore under this Act;] (b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.” 30. As per Sub-section (a) of Section 30, if period of limitation provided in 1963 Act is shorter than the period prescribed in the 1908 Act, then suit can be filed within a period of seven years, next after the commencement of 1963 Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. 31. Present suit was filed on 4.5.1968. Plaintiff averred in para 12 of the plaint that cause of action was accrued to him on 29.4.1963. 1963 Act came into operation w.e.f. 5.10.1963. Hence, as per the date of cause of action i.e. 29.4.1963, he could have filed suit within six years thereafter, as per Article 120 of 1908 Act, which would have expired on 28.4.1969. Suit RSA No.639 of 1980 (O&M) -17- was filed on 4.5.1968, hence, suit is not barred by period of limitation. Substantial question No.3 is answered accordingly. 32. Substantial question No.4 is as under:- iv) Whether the decree for possession of the suit land is maintainable against the appellants who are undisputedly tenants on the suit land? 33. Undisputedly, appellants were tenant of the plaintiff from the period prior to the land was declared surplus vide order dated 15.3.1961. If order dated 15.3.1961 is set aside or quashed, appellants would restore to their original position i.e. as tenants. No decree for possession under the present suit could be passed against the tenants of the plaintiff. If plaintiff is willing to seek the eviction of the appellants/defendants (tenants) then he has to seek appropriate remedy available under the law. In my humble opinion, both the Courts below have not considered this aspect. Hence, suit for possession was wrongly decreed. Substantial question No.4 is answered accordingly. 34. In view of the discussions made hereinabove, present second appeal is liable to be allowed in part. Judgment and decree passed by both the Courts below is confirmed up to the extent of declaration made by both the Courts below. However, decree for possession passed by both the Courts below against the appellants is set aside with the observations that plaintiff can take appropriate remedy available under the law for eviction of the defendants/appellants. RSA No.639 of 1980 (O&M) -18- 35. Appeal is allowed in part as above. No order as to costs. ( ALOK SINGH ) JUDGE 18.02.2010 ashish