IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15491 of 2009 Date of decision : 10.11.2009 Surain Singh … Petitioner Versus Financial Commissioner Punjab and another …Respondents Present: Mr. D.R.Punia, Advocate for the petitioner. S.S.Saron, J. The dispute in the present case is between two brothers namely Surain Singh (petitioner) and Narain Singh (respondent No.2). Surain Singh (petitioner) filed a civil suit on 7.6.1988 against his brother Narain Singh for possession of land measuring 7 kanals 10 marlas situated in village Reheme Shah Bodla, Tehsil Jalalabad, District Ferozepur by way of specific performance of an agreement to sell dated 27.6.1985 executed by Narian Singh in favour of Surain Singh. Surain Singh also sought alternative relief of return of Rs.5,000/- paid at the time of execution of agreement to sell. Narain Singh was the owner of the said land. According to Surain Singh (petitioner), the entire sale consideration of the disputed land was Rs.5,000/- which was paid at the time of execution of the aforesaid agreement to sell. Narain Singh contested the suit and he took a stand that he did not enter into the alleged agreement to sell dated 27.6.1985 and did not receive the consideration amount of Rs.5,000/- as claimed. His stand was that he had agreed to sell the land to the plaintiff for Rs.20,000/-. The suit of Surain Singh was decreed to the CWP No.15491 of 2009 [2] extent of recovery of Rs.6800/- vide judgment and decree dated 15.9.1992 passed by the learned Sub Judge 1st Class, Ferozepur. An appeal against the same was dismissed by learned Addl. District Judge, Ferozepur vide judgment and decree dated 14.9.1993 and Regular Second Appeal i.e. RSA No.2492 of 1993 is pending in this Court. Notice of motion was issued in the Regular Second Appeal on 9.3.1994 (Annexure P6). Meanwhile, Narian Singh (respondent No.2) herein, was restrained from alienating the property in dispute. The said Regular Second Appeal was admitted on 9.3.1995. Narian Singh (respondent No.2) thereafter on 31.1.1996, filed a suit for recovery of Rs.11,500/- from Surain Singh (petitioner) for use and occupation of the land measuring 7 kanals 10 marlas on account of mesne profits. The said suit was adjourned sine die by the Assistant Collector, 1st Grade, Jalalabad vide order dated 30.7.1996. The Collector, Ferozepur, however, vide order dated 9.11.1996 set aside the order adjourning the case sine die and remanded the case to the Assistant Collector Ist Grade for fresh decision. The Assistant Collector Ist Grade, Jalalabad vide order dated 27.11.1997 reiterated the earlier order dated 30.7.1996. Narain Singh (respondent No.2) filed an appeal before the Collector, Ferozepur who accepted the appeal and again remanded the case to the Assistant Collector Ist Grade. On remand the Assistant Collector Ist Grade, Ferozepur held that Narain Singh (respondent No.2) was owner of theland in dispute and that Surain Singh (petitioner) was in illegal occupation of the same. Accordingly, the suit of Narain Singh (respondent No.2) was decreed in his favour by the Assistant Collector Ist Grade on CWP No.15491 of 2009 [3] 20.11.1999. Surain Singh (petitioner) filed an appeal before the Collector, who dismissed the same on 6.3.2000. The revision petition filed by Surain Singh (petitioner) was dismissed by the Commissioner, Ferozepur Division Ferozepur vide order dated 21.3.2002. A further revision petition (i.e. ROR No.461 of 2002) before the Financial Commissioner, Appeals-1 Punjab was dismissed on 15.9.2005 (Annexure P7). Surain Singh (petitioner) then filed CWP No.1347 of 2006 in this Court which was admitted on 30.1.2006 (Annexure P4) and ordered to be heard along with RSA No.2492 of 1993. Meanwhile the recovery of amount pursuant to the impugned orders was stayed. The present petition arises out of the subsequent suit filed by Narain Singh for the recovery of Rs.66,487.26 paise as mesne profits for use and occupation of the land measuring 7 kanals 10 marlas being one-third share of produce obtained by Surain Singh (petitioner) relating to the period of crops from Kharif 1995 to Kharif 2005. The Assistant Collector 1st Grade, Jalalabad vide order dated 30.10.2006 adjourned the suit sine die. Narain Singh (respondent No.2) filed an appeal before the District Collector, Ferozepur who vide order dated 11.9.2007 (Annexure P-1) accepted the same and directed the parties to appear before the SDM-cum-Assistant Collector, 1st Grade, Jalalabad who was directed to decide the suit on merits. Surain Singh (petitioner) dissatisfied with the same, filed an appeal before the Commissioner, Ferozepur Division, Ferozepur who dismissed the appeal vide order dated 20.5.2008 (Annexure P-2). Surain Singh, petitioner then filed a revision petition (i.e. ROR No.553 of 2008) (Annexure P-3) before the Financial Commissioner, Appeals-I, CWP No.15491 of 2009 [4] Punjab, which has been dismissed vide order dated 9.7.2009 (Annexure P-5). The learned Financial Commissioner, Appeals-I, Punjab, Chandigarh vide impugned order dated 9.7.2009 (Annexure P-5) noticed the order dated 20.5.2008 (Annexure P-2) passed by the Commissioner, Ferozepur Division, Ferozepur. The said order, it was observed, indicated that the recovery suit relates to the crops for the period from Kharif 1995 to Kharif 2005. The plea of the learned counsel appearing for the petitioner -Surain Singh that since it was a case of sale and possession was delivered to the petitioner in pursuance of the sale agreement, the present suit for recovery was not maintainable under the Punjab Security of Land Tenures Act, was noticed and it was held that the said stand was not liable to be accepted particularly when no specific relief had been given to the petitioner by the Civil Courts. Besides, in the present case no stay had been granted. It was also held that the petitioner (Surain Singh) was in possession of the land and, therefore, respondent No.2 (Narain Singh) was entitled to recover the share of the produce. Aggrieved against the said order dated 9.7.2009 (Annexure P5) of the Financial Commissioner, Appeals I, Punjab, the present petition has been filed. Learned counsel for the petitioner has contended that in view of the pendency of RSA No.2592 of 2003 as also CWP No.1347 of 2006, the present proceedings before the Assistant Collector, 1st Grade, Jalalabad are liable to be stayed. It is submitted that the finality of the order would arise only after the rights of the parties are determined in RSA No.2492 of 1993. It is also contended that in CWP No.1347 of 2006, the recovery CWP No.15491 of 2009 [5] of amount, pursuant to the impugned order for the crops Kharif 1992 to Rabi 1995 in the said writ petition, has been stayed. I have given my thoughtful consideration to the contentions of learned counsel for the petitioner and also perused the record. As has already been noticed the Civil suit filed by Surain Singh, petitioner for possession of land measuring 7 kanals 10 marlas situated in the revenue estate of village Reheme Shah Bodla, Tehsil Jalalabad, District Ferozepur by way of specific performance of the agreement to sell between Surain Singh, petitioner and Narain Singh (respondent No.2) has been decreed by the Sub Judge 1st Class, Ferozepur vide judgment and decree dated 15.9.1992 only qua recovery of Rs.6,800/- towards the amount of sale consideration and damages. The appeal of Surain Singh (petitioner) against the said judgment and decree of the trial Court was dismissed by the learned Additional District Judge, Ferozepur vide judgment and decree dated 14.9.1993. RSA No.2492 of 1993 against judgment and decree of the 1st Appellate Court is pending in this Court wherein vide order dated 9.3.1994 (Annexure P6) while issuing notice of motion, respondent No.2, Narain Singh was restrained from alienating the property in dispute. The Regular Second Appeal was admitted on 9.3.1995. The other writ petition i.e. CWP No.1347 of 2006 arises out of the suit filed by Narain Singh (respondent No.2) for recovery of Rs.11,500/- for use and occupation of the land measuring 7 kanals 10 marlas on account of damages and mesne profits. The Assistant Collector 1st Grade Jalalabad vide order dated 30.7.1996 adjourned the said suit sine die with liberty to Narain Singh CWP No.15491 of 2009 [6] (respondent No.2) to get the proceedings restored after decision of question of title. Narain Singh (respondent No.2) aggrieved against the said order, filed an appeal before the Collector, Ferozepur who accepted the appeal and remanded the case to the Assistant Collector Ist Grade. On remand the Assistant Collector Ist Grade, Ferozepur held that Narain Singh (respondent No.2) was owner of the land in dispute and that Surain Singh (petitioner) was in illegal occupation of the same. Accordingly, the suit of Narain Singh (respondent No.2) was decreed in his favour by the Assistant Collector Ist Grade on 20.11.1999. Surain Singh (petitioner) filed an appeal before the Collector, which was dismissed by the Collector vide order dated 6.3.2000. Against the said order passed by the Collector-cum-Additional Deputy Commissioner, Ferozepur, Surain Singh (petitioner) filed a revision petition before the Commissioner Forezepur Division, Ferozepur. It was noticed by the Commissioner, Ferozepur that Narian Singh (respondent No.2) had filed a suit for recovery of Rs.11,500/- from Surain Singh (petitioner) for the use and occupation of the land measuring 7 kanals 10 marlas. The Assistant Collector 1st Grade vide judgment dated 20.11.1999 decreed the suit for Rs.11,500/- in favour of Narain Singh. Against the judgment and decree dated 20.11.1999 passed by the Assistant Collector, 1st Grade, Ferozepur, the petitioner, Surain Singh filed an appeal in the Court of Additional Deputy Commissioner-cum Collector Ferozepur who vide order dated 6.3.2000 dismissed the appeal holding that Surain Singh, petitioner admitted that respondent No.2, Narain Singh was owner of the land who had executed an agreement to sell but did CWP No.15491 of 2009 [7] not get the sale deed executed. It was held that Narain Singh (respondent No.2) was entitled to claim share of produce from Surain Singh (petitioner). The revision petition of Surain Singh (petitioner) was accordingly dismissed by the Commissioner Ferozepur Division, Ferozepur vide order dated 21.3.2002. Surain Singh aggrieved against the said order filed a revision petition before the Financial Commissioner (Appeals-1) Punjab which was dismissed vide order dated 15.9.2005 (Annexure P7). Against the order dated 15.9.2005 (Annexure P7), CWP No.1347 of 2006 is pending in this Court in which recovery of the amount pursuant to the impugned order has been stayed vide order dated 30.1.2006 (Annexure P4). In the present case, however, the suit has not been decreed so far. It may be noticed that the suit had been filed for recovery of Rs.66,487.26 P as mesne profits for use and occupation of land measuring 7 kanals and 10 marlas and one- third share of the produce obtained by Surain Singh (petitioner) for the crops relating to the period from Kharif 1995 to Kharif 2005; besides, interest at the rate of 9% has been claimed. The Assistant Collector Grade-1, vide order dated 30.10.2006, adjourned the case sine die till the decision of the civil litigation. Aggrieved against the said order, Narain Singh (respondent No.2) filed an appeal before the District Collector Ferozepur who vide order dated 11.9.2007 (Annexure P-1) accepted the appeal and directed the Assistant Collector 1st Grade-cum-SDM, Jalalabad to proceed with the suit. It was observed by the District Collector, Ferozepur that the stay granted by this Court i.e. the order of stay dated 30.1.2006 (Annexure P4) passed in CWP No.1347 of 2006 CWP No.15491 of 2009 [8] was in respect of recovery suit for the crops Kharif 1992 to Rabi 1995 whereas the present recovery suit related to the crops from Kharif 1995 to Kharif 2005. Surain Singh (petitioner) aggrieved against the said order dated 11.9.2007 (Annexure P1) of the District Collector filed an appeal before the Commissioner, Ferozepur Division, Ferozepur who vide order dated 20.5.2008 (Annexure P-2) dismissed the appeal. It was held that as per law an agreement to sell does not create any title and that Narian Singh (respondent No.2) had filed the suit against Surain Singh (petitioner) for recovery of damages for use and occupation of land for the crops relating to the period Kharif 1995 to Kharif 2005. The dispute pending in this Court in CWP No.1347 of 2006 was with respect to the period of crops from Kharif 1992 to Rabi 1995. Therefore, in the circumstances, the Collector had rightly accepted the appeal of Narian Singh (respondent No.2) and directed the Assistant Collector, 1st Grade to proceed with the recovery proceedings. Revision (i.e. ROR No.553 of 2008) against the said order has been dismissed by the Financial Commissioner, Appeals-1, Punjab vide order dated 9.7.2009 (Annexure P-5). The position therefore, is that the suit that has been filed for mesne profits by Narain Singh (respondent No.2) is liable to be proceeded with and the matters in issue are liable to be considered by the Assistant Collector, 1st Grade in accordance with law. The proceedings in the suit are in the facts and circumstances not liable to be stayed. The fact that recovery of the amount has been stayed vide order dated 30.1.2006 (Annexure P4) passed in CWP No.1347 of 2006 is with respect to the CWP No.15491 of 2009 [9] produce of the crops relating to the period Kharif 1992 to Rabi 1995. In the said case the suit itself had been decided upto the level of Financial Commissioner, Appeals-I, Punjab vide order dated 15.9.2005 (Annexure P7). In the present case, the suit has not been decided and the authorities under the Punjab Tenancy Act have merely directed the Assistant Collector Ist Grade to proceed with the suit relating to mesne profits which are claimed by Narain Singh (respondent No.2) for the use and occupation of the land measuring 7 kanals 10 marlas whereby one-third share of produce obtained by Surain Singh (petitioner) for the crops from Kharif 1995 to Kharif 2005; besides, interest at the rate of 9% has been claimed. There is no basis to stay the proceedings in the suit itself merely on the ground that in CWP No.1347 of 2006 this Court has vide order dated 30.1.2006 (Annexure P4) stayed the recovery of the amount pursuant to the impugned order dated 15.9.2005 (Annexure P7). Consequently, there is no merit in the petition and the same is, accordingly, dismissed. The Assistant Collector, 1st Grade, Jalalabad shall proceed with the suit filed by Narian Singh (respondent No.2) seeking recovery of the amount in accordance with law. [ S.S. Saron ] Judge 10.11.2009 Sd/amit