Regular Second Appeal No. 142 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.142 of 2009 Date of decision: 25.09.2009 1. Karam Kaur widow of Sadha Singh alias Sadhu Singh, 2. Sukhdev Singh, 3. Satnam Singh sons of Sadha Singh, 4. Surinder Kaur d/o Sadha Singh w/o Lakwinder Singh, 5. Balwinder Kaur d/o Sadha Singh wife of Tarsem Singh, all through Tarsem Singh son of Dharam Singh, Special Power of Attorney, r/o village Alludipur, Tehsil and district Kapurthala. ..... Appellants. Versus 1. State of Punjab through Secretary to Government Punjab Revenue and Rehabilitation Department Civil Secretariat Chandigarh. 2. Deputy Commissioner-cum-Chief Sales Commissioner, Kapurthala. 3. Tehsildar (Sales) Kapurthala. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.S.N. Saini, Advocate for the appellants. Mr. Vivek Chauhan, AAG, Punjab for the respondents. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 14.06.2006, rendered by the Court Regular Second Appeal No. 142 of 2009 -2- of Additional Civil Judge (Senior Division), Kapurthala, vide which it dismissed the suit of the plaintiffs/appellants for mandatory injunction and the judgment and decree dated 26.08.2008, rendered by the Court of Additional District Judge, Kapurthala,vide which the appeal was also dismissed. 2. According to the plaintiffs/ appellants their predecessor-in-interest, Sadha Singh, had purchased 37 kanals 4 marlas of land, for a sum of Rs.8500/-, in restricted auction, held on 25.04.1965, under the old Package Deal Rules, 1962, under the Government Policy, for settling Harijans on the land. It was stated that the earnest money was deposited at the spot by their predecessor-in-interest,Sadha Singh and the sale was confirmed, in his favour, on 15.06.1966. It was further stated that the possession of the land, in dispute, was delivered to Sadha Singh, under the Rules. It was further stated that after the death of Sadha Singh, the plaintiffs, who are his legal heirs have been in continuous possession of the suit land. It was further stated that Sadha Singh, paid eight half yearly instalments regularly. However, the remaining two half yearly instalments, had not been paid by him, due to ill health and weak financial condition. Consequently, Tehsildar (Sales), Kapurthala, cancelled the sale in favour of Sadha Singh, vide order dated 25.10.1972. The Regular Second Appeal No. 142 of 2009 -3- cancellation order was not implemented, because of lacuna in the Package Deal Rules, 1962 under which the Tehsildar (Sales) in the State, had not been given any power, regarding the cancellation of sale and resumption of land. It was further stated that, on account of cancellation order, referred to above, Tehsildar (Sales), Kapurthala, discontinued accepting any instalments. Subsequently, on coming into force of the Package Deal Properties (Disposal) Act, 1976, which had replaced the old Rules of 1962, Sadha Singh, filed an appeal before the Settlement Commissioner, in the year 1983, which was dismissed illegally. It was further stated that thereafter a revision was filed by Sadha Singh, before the Chief Sales Commissioner, which was dismissed in default on 22.11.1983, because during the pendency thereof, he died. The successors-in-interest of Sadha Singh, filed a fresh revision petition, which was dismissed, vide order dated 25.03.1985 by the Chief Sales Commissioner. It was further stated that the petition filed under Section 15(1) of the Act, was dismissed by the Commissioner, Jalandhar Division, Jalandhar, vide order dated 25.05.1988. It was further stated that the petition filed under Section 15(2) of the Act, before the State Government was decided by the Financial Commissioner(Appeals), Chandigarh, vide order dated Regular Second Appeal No. 142 of 2009 -4- 04.04.1991. It was further stated that a period of one month was given to the petitioner for deposit of the amount of outstanding instalments. It was further stated that the order was not sent to the Tehsildar (Sales), Kapurthala, who refused to accept the amount of instalments. It was further stated that when the order was received, the petition had already been dismissed. Accordingly, an application was made to the Financial Commissioner, Chandigarh, in the year 1992, for extending the period for payment by one week. It was further stated that the petition remained pending for four years and, ultimately, the same was dismissed on 13.09.1996. It was further stated that a Civil Writ Petition no.3728 of 1998 was filed against the order of Financial Commissioner, which was dismissed as withdrawn. It was further stated that the order, passed by the Tehsildar (Sales), Kapurthala, being without jurisdiction, was void abinitio and was liable to be ignored. The defendants were many a time asked, to accept the remaining instalments of the price of land, from the plaintiffs, but to no avail. On their final refusal, to accede to the request of the plaintiffs, left with no alternative, a suit for mandatory injunction, was filed. Regular Second Appeal No. 142 of 2009 -5- 3. The defendants, put in appearance, and contested the suit, by way of filing a joint written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiffs had no cause of action to file the suit; that the suit was bad for non-joinder of necessary parties; that the suit was barred by time; that the plaintiffs were estopped from filing the suit, by their own act and conduct; and that no legal and valid notice under Section 80 of the Code of Civil Procedure was served upon the defendants before filing the suit. It was, however, stated that Sadha Singh had purchased the land measuring 37 kanals 4 marlas, for a sum of Rs.8500/-, but the auction was cancelled by the Tehsildar (Sales), Kapurthala as he failed to pay the subsequent instalments. It was further stated that after cancellation of the auction, the land was auctioned and the possession thereof, was delivered to the auctioneers. It was further stated that only 2 kanals of land, out of 37 kanals 4 marlas was lying unallotted. It was admitted that the sale was cancelled by the Tehsildar (Sales), Kapurthala, vide order dated 25.10.1972 and the said order was duly implemented. It was further stated that the order of the Tehsildar(Sales), Kapurthala, was legal and valid. The remaining averments, were denied, being wrong. Regular Second Appeal No. 142 of 2009 -6- 4. From the pleadings of the parties, the following issues, were struck by the trial Court :- “1- Whether the Tehsildar(Sales) is not competent to cancel the sale confirmed by the Settlement Commissioner?OPP 2- Whether the order dated 25.10.1972 passed by Tehsildar(Sales), Kapurthala, cancelling the sale in favour of Sadha Singh, predecessor in interest of plaintiffs is null and void and without jurisdiction ? OPP 3- Whether the suit is within limitation ?OPD 4- Whether the suit is not maintainable in the present form ?OPD 5- Whether the suit is bad for mis-joinder and non- joinder of necessary parties ?OPD 6- Whether the plaintiffs have no cause of action to file the present suit ?OPD 7- Whether the plaintiffs are estopped from filing the suit by their act and conduct?OPD 8- Whether notice under Section 80-CPC has not been properly served ?OPD 9- Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction ?OPD 10- Relief.” Regular Second Appeal No. 142 of 2009 -7- 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court dismissed the suit, by holding that the Tehsildar (Sales), Kapurthala, was competent to cancel the sale, as per the terms and conditions of the agreement, executed by Sadha Singh. It further held that the order dated 25.10.1972, passed by the Tehsildar (Sales), Kapurthala was legal and valid. It was further held that the suit, challenging the order dated 25.10.1972, passed by Tehsildar (Sales), Kapurthala, having been filed on 21.05.2001, was palpably barred by time. 6. Feeling aggrieved, an appeal was preferred by the appellants/ plaintiffs, which was also dismissed by the Court of Additional District Judge, Kapurthala, vide its judgment and decree dated 26.08.2008. 7 Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellants/plaintiffs. 8. I have heard the Counsel for the parties and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the appellants submitted that the Tehsildar (Sales), Kapurthala, was not competent to pass the order, cancelling the auction, in favour of Sadha Singh. He Regular Second Appeal No. 142 of 2009 -8- further submitted that the order passed by the Tehsildar(Sales), Kapurthala, being a nullity, could be challenged, at any time. He further submitted that the suit was, thus, within limitation. He further submitted that the Courts below, recorded perverse finding that the Tehsildar(Sales), Kapurthala, was competent to pass the order impugned. He further submitted that the Courts below also recorded perverse finding that the order impugned was legal and valid. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that the Courts below were right, in coming to the conclusion, that as per the terms and conditions of the agreement, which was executed by Sadha Singh,at the time of auction, the sale, in his favour, could be cancelled, on account of default in payment of the price of the land, by way of instalments. He further submitted that the order, passed by the Tehsildar(Sales) regarding the cancellation of auction, was rightly held to be legal and valid by the Courts below. He further submitted that the Courts below were also right, in holding that even if, any order is assumed to be without jurisdiction and, as such, a nullity, it is required to be Regular Second Appeal No. 142 of 2009 -9- challenged within a period of three years, from the date of passing the same, and, as such, the suit having been filed by the plaintiff after 29 years of the passing of the order by the Tehsildar, was palpably barred by time. He further submitted that the judgments and decrees, passed by the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Regular Second Appeal No. 142 of 2009 -10- Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. At the time of auction in favour of Sadha Singh, predecessor-in- interest of the plaintiffs, an agreement was executed by him. The Courts below were right in holding, that according to the terms and conditions of the agreement,executed by Sadha Singh, at the time of auction, in case of default, on the part of the auctioner to pay any instalment in time, the sale was liable to be cancelled. The Courts below were, thus, right, in holding that the order dated 25.10.1972, passed by the Tehsildar(Sales), Kapurthala, cancelling the auction, in favour of Sadha Singh, was legal and valid. The Courts below were also right in holding that the suit challenging the order dated 25.10.1972, passed by the Tehsildar, having been filed on 21.05.2001, was palpably barred by time. 12. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points,being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgments and decrees of the Courts below are liable to be upheld. Regular Second Appeal No. 142 of 2009 -11- 13. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 14. For the reasons recorded above, the appeal, being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) September 25,2009 Judge dinesh