R.S.A. No.1568 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1568 of 1985 (O&M) Date of Decision: February 11, 2011 Kamla Wati and others, legal representatives of Shri Sardari Lal, Subhash Cloth House, Putlighar, Amritsar, Now at Gali Daiwali, Katra Khazana, Amritsar. .....Appellants The Secretary, Rehabilitation Department, Government of India, New Delhi and others .....Respondents. CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.B.R.Mahajan, Advocate for the appellants. Ms.Kavita Arora, AAG, Punjab. ...... Ram Chand Gupta,J. 1. Facts giving rise to the present Regular Second Appeal are as under:- 2. Shop No.34 in New Market (Shopping Centre) Putligarh, Amritsar, was sold to one Hoshnak Singh by the Punjab Government. However, he refused to take the possession of the same and to deposit the sale price for the reason that its main entrance was covered by the wall of the adjoining shops. Hence, the shop was later on transferred by way of sale to Nand Lal. On request of Nand Lal, he was allowed to use vacant site, i.e. Phari adjacent to shop No.28, by the then Deputy Commissioner. He was also allowed to instal a wooden khokha on the said site. Subsequently, the said shop No.34 was transferred in equal shares to Des Raj and Inderjit. Both of them thereafter sold the same to Sardari Lal- plaintiff, since deceased and represented by his legal heirs, i.e. present appellants, who were brought on record during the pendency of the present litigation. Permission for use and occupation of the said site was also granted to Des Raj and Inderjit and however, no such permission was granted to Sardari Lal-deceased. R.S.A. No.1568 of 1985 (O&M) -2- 3. Sardari Lal rented out the said wooden Khokha installed on the said vacant site adjacent to shop no.28, which can be said to be the disputed site to Kamal Kishore-respondent-defendant no.4 @ Rs.150/- per month. It was stated to be an oral tenancy. Secretary, Rehabilitation Department, i.e., defendant-respondent no.1 through Commissioner, Jalandhar Division, Jalanadhar, vide order dated 18.12.1979 directed the said tenant, i.e., respondent-defendant no.4 to vacate the said wooden khokha and the site underneath the Khokha. 4. Case of present appellants, i.e., legal representatives of plaintiff-Sardari Lal is that they were not required to seek permission of Deputy Commissioner, Amritsar, for purchasing the said site from previous owner and for renting out the said wooden khokha to Kamal Kishore, i.e., respondent-defendant no.4 and that rather use and occupation of the said site was part of sale of shop no.34 to plaintiff-Sardari Lal (deceased) and that he was having legal right to construct khokha over the said site and to induct a tenant in the same. Hence, a suit for declaration was sought by plaintiff -Sardari Lal (deceased) that his use and occupation of the wooden khokha and the site underneath it, situated on the eastern side of shop no.28 was regular, valid and legal with consequential relief of injunction restraining respondent-defendant nos.1 to 3 from dispossessing him through his tenant Kamal Kishore from the said site and khokha. 5. Respondent-defendant nos.1 to 3 contested the suit filed by plaintiff- Sardari Lal (deceased), inter alia, on the ground that Civil Court had no jurisdiction to decide the controversy in dispute; that the plaintiff lost his case firstly before Collector, Punjab and then before Commissioner, Jalandhar Division, Jalandhar, and hence having no right to seek redress from the civil Court. Plea has also been taken that the site underneath wooden khokha vested in the State Government and hence Kamal Kishore was in an unauthorised occupation thereof and liable to pay damages for use and occupation of the same to the Government. Kamal Kishore-respondent- defendant no.4 filed separate written statement taking the plea that the site in dispute vested in the State Government and that Sardari Lal-plaintiff was having no lawful right and interest therein and that he was paying rent/damages to the State Government and that his application for R.S.A. No.1568 of 1985 (O&M) -3- transferring the said site to him was pending before the State Government. He had further asserted that Saradari Lal represented to him that he was owner of the site in dispute and hence he had taken the said land from him and however, lateron it was held in the litigation between the parties that Saradari Lal had no right to let out the said site to him as ownership of the same vested in the State Government. 6. Respondent nos.5 to 7 on behalf of all the 42 shopkeepers of Shopping Centre, Putligarh, Amritsar, filed separate written statement taking the plea that the shops were allotted to them and the vacant site was of their joint ownership and hence Deputy Commissioner, Amritsar, had no authority to give permission for the installation of wooden khokha over the said site to allottee of shop no.34. 7. From the pleadings of the parties, following issues were settled for adjudication by learned trial Court:- “1. Whether this court has no jurisdiction to try the suit in view of Section 10 of the East Punjab Refugees Rehabilitation (Building and Building Sites) Act, 1948? OPD 2. Whether the plaintiff has lost his case before the Collector and also before the Commissioner Jullundur Division. If so its effect? OPD 3. Whether the plaintiff has rented out the khokha and phari to defendant No.4. If so its effect? OPP 4. Whether the suit property is owned by the State Govt. and the plaintiff is liable to pay damages in the shape of rent for its use and occupation to defendant No.2. OPD 5. Whether the plaintiff has right, title or interest in the suit property ?OPP 6. Whether notice served u/s 80 C.P.C. on the defendants is valid?OPP 7. Whether the plaintiff is entitled for injunction claimed in the suit ?OPP 7A Whether defendants No.5 to 7 on behalf of all the R.S.A. No.1568 of 1985 (O&M) -4- shopkeepers have a common interest in the subject matter of the suit ?OPD 5 to 7. 8. Relief.” 8. Parties adduced evidence in support of their respective contentions before learned trial Court. After hearing the parties, learned trial Court discussed issue nos.1,2 4 and 5 together and decided the same in favour of Sardari Lal-plaintiff holding that jurisdiction of the Civil Court is not barred and that plaintiff has a right to use the disputed site underneath wooden khokha and that Kamal Kishore- respondent-defendant no.4 was liable to pay rent to him and that all 42 shopkeepers had no common interest in the said site. Claim of ownership of the State Government qua the said site was also negated. 9. While deciding issue no.3, it was held that plaintiff is entitled to receive the rent from defendant no.4 for use and occupation of the khokha. Issue no.6 was also decided in favour of the plaintiff by holding that valid and legal notice was issued by the plaintiff before filing the present suit. 10. Issue Nos.7 and 7A have also been decided in favour of the plaintiff-Sardari Lal (deceased). 11. As a sequel to findings on various issues, the suit of plaintiff- Sardari Lal was decreed with no order as to cost on 20.12.1982. 12. Feeling aggrieved against the said judgment, respondent -defendant nos.1 to 3, filed appeal before learned Additional District Judge, Amritsar, who vide impugned judgment dated 27.3.1985 reversed the finding of learned trial Court on various issues and as a consequence thereof ordered for dismissal of the suit filed by the appellants, i.e., legal representatives of plaintiff Sardari Lal-deceased. 13. Aggrieved against the said judgment and decree passed by learned first appellate Court, the present Regular Second Appeal has been filed by legal representatives of Sardari Lal -plaintiff. 14. I have heard learned counsel for the parties and have gone through the whole record carefully. 15. As the appeal was filed in the year 1985, the same was admitted for hearing by this Court without framing substantial question of law. R.S.A. No.1568 of 1985 (O&M) -5- 16. A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. 17. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 18. Hence, in view of this legal background, the matter is being considered by this Court as to whether any substantial question of law is found to have arisen in the present Regular Second Appeal. 19. Learned counsel for the appellants has argued that the well reasoned judgment rendered in favour of the appellants-plaintiff by learned trial Court has been set aside by learned appellate Court without any cogent reason and hence he has framed the following substantial questions of law stated to be arising in this Regular Second Appeal:- “1. Whether right to use site in dispute is part of terms and conditions of allotment/sale of shop no.34, New Market R.S.A. No.1568 of 1985 (O&M) -6- Shopping Centre, Putlighar, Amritsar and the plaintiff being purchaser of the shop was entitled to use the same? 2. Whether in the absence of any order by the Deputy Commissioner withdrawing/ cancelling permission to use site in dispute by owner of shop No.34, initiation of proceedings by Tehsildar and orders passed under Public Premises Act are void and without jurisdiction? 3. Whether orders passed by the Collector and the Commissioner under Public Premises Act being without jurisdiction, the Civil Court has jurisdiction to entertain the suit and finding of first appellate court are liable to be reversed? 4. Whether judgment and decree of Additional District Judge suffer from perversity being contrary to and ignoring material evidence on record as well as against law?” 20. On the other hand it has been argued by learned counsel for respondent-defendant nos.1 to 3 that no such substantial question of law arises in this appeal for consideration by this Court. 21. In Santosh Hazari v. Purushottam Tiwar (Dead) by Lrs JT 2001(2) SC 407, it was observed by Hon'ble Apex Court that in order to maintain second appeal, substantial question of law should arise from the finding of fact and it should be formulated by the High Court. It was further observed that trial Court had decreed the suit and first appellate Court reversed the finding of trial Court and on the facts of that case, it was held that substantial question of law arise particularly when trial Courts findings were reversed by first appellate Court. It was observed that the task of an appellate Court affirming the finding of trial Court is an easier one and appellate Court agreeing with the view of trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court and that expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. However, it is averred that while writing a judgment of reversal, the appellate Court must remain conscious of two principles: firstly the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence R.S.A. No.1568 of 1985 (O&M) -7- recorded by the same Presiding Judge, who authors the judgment and if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. It is further observed that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the findings of the trial Judge on a question of fact. It was also observed that while reversing the finding of fact, the appellate Court must come into close quarters with the reasoning assigned by learned trial Court and then assign its own reasons for arriving at a different finding. 22. On the facts and circumstances of that case, Hon'ble Apex Court framed the following substantial question of law for decision by the High Court:- “ Whether on the pleadings and the material brought on record by the defendant, the First Appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?” 23. In view of the peculiar facts and circumstances of this case, I am of the view that the aforementioned substantial questions of law, as argued by learned counsel for the appellants are found to have arisen in the present Regular Second Appeal for consideration by this Court. 24. It has been contended by learned counsel for the appellants that admittedly shop No.34 was initially allotted to Hoshnak Singh. However, he had refused to take the possession of the same and to deposit the price of the shop on the ground that in front of the main door of the shop, there was wall of adjoining shops and hence the said shop could not be used for shop and that at the most the same could be used as a godown. It is further R.S.A. No.1568 of 1985 (O&M) -8- contended that hence the shop was later on allotted to Nand Lal son of Hira Lal and however as the door of the shop was blocked and as he could not run his business in the said shop, he was allotted to occupy the phari adjacent to shop No.28. For this he has drawn attention of this Court to Ex.PA, i.e., copy from official record on which order for allotting the shop to Nand Lal was passed. It is further contended that subsequently vide order Ex.PB, passed by Deputy Commissioner, Amritsar, Nand Lal was allowed to instal a wooden khokha on the eastern side of shop No.28 on open space already allotted vide order of Deputy Commissioner, dated 22.11.1955. Hence, it is contended that the site in dispute has become part and parcel of shop No.34 and hence subsequent transferees are having the right to use the said site, in any manner, as owners. Hence, it is contended that as after sale of the said shop and after allowing use and occupation of the site in dispute alongwith the said shop, respondent-Government was left with no right in the site in dispute and hence subsequent orders, if any, passed by Collector and the Commissioner are null and void and are having no effect on the rights of the ownership of the site in dispute of the present appellants, i.e., legal representative of plaintiff-Sardari Lal. 25. On the other hand, it has been contended by learned State counsel that the site in dispute was never sold to Nand Lal alongwith shop No.34 and that initially Nand Lal was only given right to use and occupation of the said site and thereafter subsequent vendees Des Raj and Inderjit were given the said right and, however, no such right was given to Sardari Lal-plaintiff. It is further contended that moreover in the previous litigations, Sardari Lal had failed to prove his right as owner over the site in dispute and hence it is contended that it has been rightly held by learned first appellate Court that civil Court is having no jurisdiction to adjudicate the matter afresh and that jurisdiction of civil Court is specifically barred and hence, she has supported the impugned judgment passed by learned first appellate Court. 26. Admitted facts are that Sardari Lal -plaintiff (deceased) had filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 against Kamal Kishore, respondent-defendant no.4 for his ejectment from wooden khokha installed over the site in dispute and R.S.A. No.1568 of 1985 (O&M) -9- then learned Rent Controller vide order dated 18.4.1979 found that the disputed site vested in the Central Government and that there was no relationship of landlord and tenant between the parties and that the former landlord was having no right to put up super structure on the site in dispute and hence it was held that it was not open to plaintiff -Sardari Lal (deceased) to agitate that Kamal Kishore-respondent no.4 was tenant in occupation of the said wooden khokha under him or that he was in lawful possession of the site in dispute through him. The said findings have become final and Sardari Lal (deceased) has not challenged the said findings thereafter. 27. Tehsildar (Sales) also instituted a petition under Sections 4 and 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery), Act, 1973, before Collector, Punjab, on July 22, 1976 against Kamal Kishore- respondent-defendant no.4 regarding the wooden khokha installed over the site in dispute. In those proceedings Sardari Lal-plaintiff also moved an application for being impleaded as a party, which was allowed. The said proceedings were contested by Sardari Lal. Then Collector, vide order dated 14.6.1978 found that Sardari Lal-plaintiff was having no legal right to sublet the disputed site to Kewal Kishore. Sardari Lal was found to be in unauthorised occupation of the said site and it was held that the site vested in the Government and hence the application filed by Tehsildar (sales) was allowed. Plaintiff-Sardari Lal filed appeal before Commissioner, Jalandhar Division, Jalandhar, against the said order, which was dismissed vide order dated 18.12.1979 and the said findings have also become final. 28. It is pertinent to reproduce Sections 10 and 15 of the East Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, which read as under:- “10.Finality of orders.- Save as otherwise expressly provided in this Act, every order made by the Collector or Commissioner under this Act shall be final and shall not be called in question in any original suit, application or execution proceedings and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in R.S.A. No.1568 of 1985 (O&M) -10- pursuance of any power conferred by or under the Act. 15. Bar of Jurisdiction.-No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub section (I) of Section 7 or damages payable under Section (2) of that section or the costs awarded to the State Government or Corporate authority under sub-section (5) of Section 9or any portion of such rent, damages or cost.” 29. Hence, in view of the aforementioned provisions, Civil Court is having no jurisdiction to entertain the suit to set aside the order passed by the Collector or Commissioner under the said Act. 30. Moreover, as already discussed above, there is no dispute that site in dispute was situated in eastern side of shop no.28 and was not part of shop No.34, which was transferred by way of sale firstly to Nand Lal on behalf of the State Government. Deputy Commissioner, Amritsar vide his memo no.34 of 1961 only allowed Nand Lal to instal wooden khokha over it. Nand Lal had sold the said shop to Des Raj and Inderjit with the permission of Deputy Commissioner and hence Des Raj and Inderjit were also allowed to use the wooden khokha on behalf of the Deputy Commissioner, Amritsar. However, Sardari Lal purchased shop no.34 from Des Raj and Inderjit without permission of Deputy Commissioner to use the site in dispute and the wooden khokha. 31. In view of these facts, it cannot be said that ownership right in the site in dispute were transferred in favour of Nand Lal or in favour of Des Raj and Inderjit. Present appellants, i.e., legal representatives of plaintiff Sardari Lal are claiming ownership right through Des Raj and Inderjit and when even Des Raj and Inderjit were not having ownership right of the site in dispute, it cannot be said that Sardari Lal (deceased) acquired the ownership right of the said site in dispute. There is also no force in the argument of learned counsel for the appellant-plaintiff that permission for use and occupation of the site in dispute was implied in the transfer through sale of shop No.34. 32. As per Section 2 of the East Punjab Refugees Rehabilitation R.S.A. No.1568 of 1985 (O&M) -11- (Buildings and Building Sites) Act, 1948, temporary right of use and occupation of any building or site to any person on payment of rent or otherwise could be granted by Deputy Commissioner, and however, no such right was granted by the Deputy Commissioner, Amritsar, in respect of the site in dispute to Sardari Lal (deceased). 33. It has been rightly held by learned first appellate Court that the site in dispute cannot be said to be structural constituent of shop No.34. Hence, Sardari Lal, the present appellant-plaintiff was neither having ownership right nor right of use and occupation of the site in dispute. He has already failed to prove his any legal right over the site in dispute in the previous litigations, as discussed above, and hence he is having no right to re-agitate the matter over again in the present suit. 34. Hence, learned first appellate Court has rightly come to the conclusion that the site in dispute has never ceased to be a public premises even though Nand Lal and thereafter Des Raj and Inderjit were allowed by Deputy Commissioner to use and occupy the said site in dispute and to instal a wooden khokha. It was at the most a grant for the temporary right of its use and occupation. Though Des Raj and Inderjit could sell the shop no.34 to Sardari Lal and however, they could not give a right for use and occupation of the site in dispute to subsequent vendee without permission of Deputy Commissioner. It has been rightly held by learned first appellate Court that