RSA No.3947 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3947 of 2010 (O&M) Date of Decision: 19 .10.2011 Puran Singh ...Appellant Vs. Pushpa Rani & Ors. Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Raj Kumar Kakkar, Advocate, for the appellant. --- A.N.Jindal, J. Puran Singh defendant/appellant (herein referred as the defendant) has challenged the judgment and decree dated 17.2.2010 passed by the Additional District Judge, Ferozepore, dismissing the appeal of the defendant against the judgment dated 23.7.2008 whereby suit of the plaintiff for possession and mesne profits at the rate of Rs.30,000/- per year w.e.f. 15.01.2003 along with interest at the rate of 6 per cent per annum till actual realization was decreed. The defendant was further directed to hand over the possession of the suit land to the plaintiff. The Cross Objections filed by Smt. Pushpa Rani also RSA No.3947 of 2010 2 met the same fate. Facts necessary for disposal of the appeal are that the plaintiffs had filed a suit for possession of the agricultural land measuring 11 kanals 11 marlas along with mesne profits against the defendant on the basis of title. Pursuant to the notice, the defendant appeared and contested the cause by filing written statement claiming that he is not in unauthorized possession of the suit land. Therefore the plaintiff is neither entitled to possession nor mesne profits. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff is entitled to the possession of the property in dispute as prayed for? OPP 2. Whether the defendant is in illegal and unauthorized possession, if so whether the plaintiffs are entitled to the mesne profits and damages? OPP 3. Whether the plaintiff is entitled to recover interest @ 18% per annum on the amount of mesne profits? OPP 4. Whether this court has no jurisdiction to try and decide the present suit? OPD 5. Whether proper court fee has not been affixed? OPD 6. Whether the plaintiff has concealed the material facts from the court and as such the suit is liable to RSA No.3947 of 2010 3 be dismissed in view of the objection No.3 of the written statement? OPD 7. Relief. Having heard rival contentions the trial court decreed the suit of the plaintiffs for possession and mesne profits at the rate of Rs.30,000/-- per year w.e.f. 15.01.2003 along with interest at the rate of 6 per cent per annum till realization. Puran Singh filed an appeal against the judgment, whereas Smt. Pushpa Rani also filed cross objections. In order to prove their case, the plaintiffs examined Ramesh Kumar (PW 1) who tendered into evidence his affidavit Ex.PW 1/A in which he deposed that he is the general power of attorney of the plaintiffs who are his parents. He has proved power of attorney as Ex.P1. In his affidavit, he reiterated the averments as made in the plaint. He has also placed on record copy of jamabandi for the year 1999-2000 Ex.P2, copy of order dated 21.6.2002 passed by F.C.R. Punjab, Chandigarh Ex.P3, copy of judgment dated 16.11.2004 passed by High Court Ex.P.4, copy of SLP Ex.P5, copies of Khasra girdawaris Ex.P.6 and Ex.P.7. Balwant Singh Kanungo (PW 2) has tendered into evidence his affidavit Ex.PW 2/A in which he deposed about the record pertaining to the bandobast and rates of crops being cultivated in the land. Rameshwar Dass plaintiff (PW 3) tendered into evidence RSA No.3947 of 2010 4 his affidavit Ex.PW 3/A in which he reiterated the averments as made in the plaint. Per contra, the defendant while examining himself as DW 1 closed his evidence. In order to establish the claim, the plaintiffs have proved copy of Jamabadi for the year 1999-2000 Ex.P.2 and the order dated 21.6.2002 Ex.P.3 passed by the Financial Commissioner indicating that the plaintiffs are the bona fide purchasers of the suit land from their predecessors who were allotted land. Order passed by the Financial Commissioner under the Displaced Persons (Compensation and Rehabilitation) Act has also attained finality as defendant had challenged the said order before the High Court by way of writ petition which was dismissed on 16.11.2004. The SLP filed by him has also been dismissed by the Apex Court. Defendant/appellant has failed to raise any cloud over the title of the plaintiffs. Similarly both the courts below have rightly held that the plaintiffs were entitled to recover the mesne profits. No meaningful argument has been raised in order to assail the findings recorded by both the courts below, except urging that the civil court has no jurisdiction to pass a decree for possession in view of the bar created under sections 19 and 36 of the Displaced Persons (Com. & Reh.) Act, 1954 civil court had no jurisdiction to try the suit. Section 19 of the Displaced Persons (Com. & Reh.) Act, 1954, reads as under:- “19.Power to vary or cancel leases or allotment of any RSA No.3947 of 2010 5 property acquired under this Act: (1)Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act. (2)Where any person,- (a)has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub-section (1), or (b)is otherwise in unauthorized possession of any evacuee property or any other immovable property forming part of the compensation pool; he shall, after he has been given a reasonable opportunity of showing cause against his eviction from such property, surrender possession of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorized by such officer or corporation. (3)If any person fails to surrender possession of any property on demand made under sub-section (2), the RSA No.3947 of 2010 6 managing officer or managing corporation may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to be used such force as may be necessary. (4)Where a managing officer or a managing corporation is satisfied that any person, whether by way of allotment or lease, is or has at any time been, in possession of any evacuee property acquired under this Act to which he was not entitled, or which was in excess of that to which he was entitled, under the law under which such allotment or lease was made or granted, then, without prejudice to any other action which may be taken against that person, the managing officer or the managing corporation may, having regard to such principles of assessment of rent as may be specified in this behalf by the Central Government, by order, assess the rent payable in respect of such property and that person shall be liable to pay the rent so assessed for the period for which the property remains or has remained in his possession: Provided that no such order shall be made without giving to the person concerned a reasonable opportunity of being heard. (5) Where any person is, or has at any time been, in RSA No.3947 of 2010 7 unauthorized possession of any evacuee property acquired under this Act, the managing officer or the managing corporation may, having regard to such principles of assessment of damages as may be specified in this behalf, by the Central Government, assess the damages on account of the use and occupation of such property and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order: Provided that no such order shall be made without giving to the person concerned a reasonable opportunity of being heard.” From a bare reading of Section 19 it transpires that the Act prescribed procedure that if the land is allotted to an allottee then the authorities under the Act could place the allottee in possession. But Section does not create a bar that when the allotment has been made and the plaintiff did not receive the possession then the civil court has no jurisdiction to pass a decree for possession. Similarly, on perusal of Section 36 of the Act it transpires that no civil court would have jurisdiction to entertain any suit or proceedings in respect of any matter which the Central Government or any officer or authority appointed under the Act is empowered by or under the Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be RSA No.3947 of 2010 8 taken in pursuance of any power conferred by or under the Act. From bare perusal of section 36 of the Act it transpires that the Act was enacted for putting displaced persons in possession of the land out of the common pool and this Section creates a bar over the jurisdiction of the civil court qua the acts which the officers of the Central Government or the Authority appointed under the Act were empowered to determine including the powers to determine if the land was evacuee property; whether land was rightly allotted, whether the person was entitled or had no right to receive the land; whether the person claiming was a displaced person and whether ownership of the evacuee property has vested in the allottee, but after the allotment had become final and the allottees had further transferred the land then the civil court was not barred to decide the subsequent clouds created by third parties qua the relief of possession, mesne profits or any other relief. Admittedly, the defendant is not the owner of the suit property and he is opposing the right of possession of the plaintiff on hyper technical issues stating that only revenue authorities could proceed to deliver the possession which to my mind is not correct in the given circumstances of the case. No substantial question of law arises in this appeal for consideration of this court. Dismissed. (A.N.Jindal) 19.10.2011 Judge rp