RSA No.3283 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3283 of 2011 Date of decision 10.8.2011. Dharam Chand and others. ...... Appellants. versus State of Haryana and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. S.K.Jain, Advocate for the appellants, K.C.PURI . J. Challenge in this appeal by the plaintiffs/appellants are the judgment and decree dated 15-06-2011 passed by Shri S.S.Lamba, District Judge, Rohtak, vide which the appeal preferred by the plaintiffs-appellants against the judgment and decree dated 25.5.2010 passed by Shri Basruddin, Additional Civil Judge (Senior Division), Rohtak, was dismissed. 2. The case of the plaintiffs in brief is that vide order dated 21.12.1959, the Collector declared the suit land as surplus land in the hands of Singh Ram. The property mentioned in the head note of the plaint RSA No.3283 of 2011 2 has been exclusive property of plaintiffs and they are in continuous possession of the same. This property never vested in State of Haryana. It has been further averred that on 15.04.1953 Singh Ram had half share and Smt. Dhaulan widow of Ram Dei had half share in the total land and Smt. Dhaulan had adopted Har Narain son of Singh Ram as her adopted son and to this effect a decree was passed on 8.2.1966. Singh Ram has been in possession of the suit property since 8.2.1966 till his death on 19.9.1997. Plaintiffs No.1 and 2 are transferee from Singh Ram and all plaintiffs as per details given in the head-note are owners in possession of the property mentioned therein. Defendant No.1 and the remaining defendants have no concern with the disputed property. Plaintiffs without the knowledge of the actual facts and on wrong advice of their counsel and without looking the actual order dated 21.12.1959 moved an application for exemption of the suit land from the surplus pool. The application was moved before Prescribed Authority and vide order dated 14.3.1995 some land was exempted. Ram Pal and others filed an appeal before the Collector and the said appeal was accepted on 30.9.1999. Second appeal was filed before Commissioner, Rohtak Division but the said appeal was dismissed on 29.11.2000. All these orders are wrong, illegal, without jurisdiction, null and void, not binding on the rights of the plaintiffs. Alternatively, it was further pleaded that in the order declaring the land in dispute as surplus is found that must be treated as become redundant on the ground that Singh Ram was not legally owner of half share as Smt. Dhaulan widow of Ram Dei had already adopted her son Har Narain, so order of Collector, if any, was without jurisdiction. Disputed property was never declared surplus land RSA No.3283 of 2011 3 under Punjab Security of Land Tenure Act or Haryana Ceiling on Land Holding Act. On the other hand Smt. Dhaulan and Ram Singh were already small land owner on 15.04.1953. Hence the suit. 3. Defendant No.1 filed written statement taking preliminary objection regarding locus standi, maintainability of suit, jurisdiction and limitation etc. 4. On merits, it has been alleged that the disputed property was legally declared surplus as on 21.12.1959. This fact has been admitted by the plaintiffs in their application dated 14.03.1995 moved before S.D.O. (Civil), Rohtak. Since from the beginning plaintiffs and their predecessors had knowledge that the disputed property was legally declared surplus as on 21.12.1959. This fact has been admitted in their application dated 14.03.1995 moved before S.D.O.(Civil), Rohtak. Since from the beginning plaintiffs and their predecessors had knowledge that disputed property has been declared surplus under Punjab Security of Land Tenures Act. The present suit is not maintainable in view of Section 25 of the Punjab Security of Land Tenures Act, 1952 and Section 26 of Haryana Ceiling on Land Holdings Act, 1972. It was further averred that defendants No.2 to 7 are legally allottee and they have very much right qua their interest in the disputed property. 5. Defendants Nos. 2 to 7 filed written statement taking up similar preliminary objections. On merits, it is pleaded that property has been declared surplus on 21.12.1959, which was allotted to them. It is also pleaded that SDO decided the case in favour of plaintiffs on 2.2.1995. However, it is pleaded that they filed an appeal against the order dated RSA No.3283 of 2011 4 2.2.1995 which was accepted by Collector vide order dated 30.3.1999. The plaintiffs filed appeal before the Commissioner, Rohtak which was dismissed on 29.11.2000. The Financial Commissioner, Rohtak also dismissed the appeal on 1.8.2001. It is pleaded that after 36 years of declaring the land surplus, the present suit has been filed. 6. Replication controverting the contents of the written statement and reasserting those of the plaint was filed. From the pleadings of the parties, following issues were settled:- 1. Whether the plaintiffs are owners in possession of suit land?OPP 2. Whether the civil court has no jurisdiction to try the present suit?OPD 3. Whether the plaintiffs have no locus standi to file the present suit?OPD 4. Whether the suit is time barred?OPD 5. Whether the plaintiffs have concealed the true and material facts from the court?OPD 6. Relief 7. To prove their case, one of the plaintiffs Dharam Chand appeared as PW-1 and also examined Raj Kumar (PW-2), Bijender Singh, Record Keeper as (PW-3), Balwan as (PW-4), Raj Singh as (PW-5) and Prem Singh, Clerk as (PW-6). 8. In rebuttal defendants examined Jagdish son of Bir Singh as DW-1, Rampal as DW-2 and Subhash Chander, Naib Tehsildar as DW-3. 9. The learned trial Court returned findings on issue No.1 in RSA No.3283 of 2011 5 favour of defendants and against the plaintiffs. Issue No.2 was decided in favour of the plaintiffs and against the defendants. Issue Nos.3 to 5 were decided in favour of defendants and against the plaintiffs. In view of the findings on issue Nos.1,3 to 5, suit of the plaintiffs was dismissed. 10. Feeling dissatisfied with the above said judgment and decree dated 25.5.2010 passed by Shri Basruddin, Additional Civil Judge (Senior Division), Rohtak, the plaintiffs have preferred First Appeal. 11. The learned District Judge, vide judgment and decree dated 5.6.2011 after re-appraisal of the evidence dismissed the appeal of the plaintiffs vide judgment and decree dated 15.6.2011 . 12. Still feeling dissatisfied with the aforesaid judgments and decrees 25.5.2010 and 5.6.2011 respectively, preferred the present regular second appeal. 13. The appellants in paragraph No.8 of the grounds of appeal have mentioned that following substantial questions of law have arisen :- 1. Whether the judgment and decree passed by the learned courts below are perverse and thus, cannot be sustained in law or not ? 2. Whether the land could be declared surplus in the absence of any order of surplus or not ? 3. Whether the revenue officials are within their jurisdiction to sanction a mutation in favour of the State in the absence of any order of surplus or not ? 4. Whether notice to the appellants before the sanctioning of mutation was mandatory or not ? 5. Whether the non compliance of Rule 6 of the Punjab Security of Land tenures Rules, 1956 will render the entire proceedings of surplus as nullity and bad in the eyes of law or not ? 6. Whether alleged admission will dispense with the RSA No.3283 of 2011 6 State to prove the existence of the order of surplus or not ? 7. Whether it was mandatory for the learned lower appellate court to record findings on each and every issues as required under Order 14 Rule 2 CPC or not ? 8. Whether the impugned judgment and decree passed by the learned courts below are contrary to the provisions of Article 300-A of the Constitution of India or not ? 14. I have heard learned counsel for the appellants and have gone through the file of the case with his able assistance. 15. Learned counsel for the appellants has submitted that the defendant No.1 has failed to prove the existence of order dated 21.12.1959 declaring the land surplus. In the absence of said order, the suit land cannot be declared surplus. The judgments and decrees of both the Courts below are perverse and cannot sustain in the eyes of law. The revenue official has no right to sanction mutation in favour of the State in the absence of any order of surplus. 16. It is further submitted that there is no compliance of Rule 6 of the Punjab Security of Land Tenures Act, 1956 as the land owner was not allowed to choose the permissible area. To support this contention, learned counsel for the appellant has relied upon Tek Ram vs. State of Haryana 1992 PLJ-642 and has also relied upon authority Chandgi and others vs. Financial Commissioner Haryana and others 1984 P.L.J. 437. 17. I have considered the submissions made by counsel for the appellants 18 It is settled law that plaintiffs have to prove their case. The RSA No.3283 of 2011 7 plaintiffs-appellants before both the Courts below have taken the stand that since the order dated 21.12.1959 declaring the land of Singh Ram as surplus has not been produced and on that account whole proceeding are illegal. Both the Courts below have dealt in this aspect of the matter and have given a concurrent finding of fact that suit land was declared surplus on 21.12.1959. The appellants have challenged the order of land declaring surplus in the year 1984 and they remained unsuccessful. The order can be challenged only after admitting the existence of the same. By concealing the order of the year 1984, the appellants again in the year 1995 approached the Sub Division Officer (Civil) praying that land has not become surplus. Sub Division Officer (Civil) accepts the prayer of the appellants. The aggrieved persons i.e. allottees of the surplus land approached the Collector and Collector vide order dated 30.3.1999, accepted the appeal of the allottees and set aside the order dated 24.3.1995. Still not satisfied with the order of the Collector dated 30.3.1999, the plaintiffs admittedly approached the Commissioner, Rohtak and their appeal was dismissed on 29.11.2000. Still feeling dissatisfied, the plaintiffs- appellants approached the Financial Commissioner and their revision/appeal was dismissed vide order dated 1.8.2001 by the Financial Commissioner. The appellants have lost in the litigation up to the Financial Commissioner. Instead of approaching the High Court by way of writ petition, the present suit has been filed. 18. So far as the submission made by learned counsel for the appellants that there is nothing on the file to show that Singh Ram was allowed to choose the permissible area and in view of authority Tek Ram's RSA No.3283 of 2011 8 case (supra), the order declaring the land surplus is concerned that submission is without any substance. 20. It is not the case of the plaintiffs, pleaded any where that permissible area has not been allotted to the Singh Ram. So, the authority Tek Ram's case (supra) is not helpful to the appellants. 21. Authority Chandgi Ram's case (supra) is remotely connected to the facts of the present case. In that case area declaring land surplus in the year 1959 was set aside by the Financial Commissioner in the year 1962. In the present case, the Financial Commissioner has affirmed the declaring the land as surplus vide order dated 1.8.2001. So that authority does not help the case of the appellants in any manner. 22. There is nothing on the file to show that both the Courts below have misread and misinterpreted and misconstrued the evidence on the file. There is nothing on the file that the Appellate Court has not given the finding correctly. Whatever was argued before the First Appellate Court that has been reflected in the judgment. Learned counsel for the appellants could not make any pointed attention that which of the arguments has not been properly appreciated. 23. Learned counsel for the appellants could not point out that which of the issue has not been framed by the trial Court. Otherwise also, when the parties are alive to the facts of the each case, in that case, non- framing of the issues is immaterial. There is nothing on the file that judgments and decrees passed by both the Courts below are not passed by speaking order. So far as the statement made by learned counsel for the appellants that after the death of Singh Ram, the original owner, the land RSA No.3283 of 2011 9 should be re-determined. 24. However, in the present case, the legal representatives of Singh Ram have approached for re-determination of their shares, which were declined in the year 1984. So, it cannot be said that matter has to be re- determined after the death of Singh Ram. It cannot be said that judgment and decrees of both the Courts below are perverse. Counsel for the appellants could not convince the Court how judgment and decrees of both the Courts below are against Article 300-A of the Constitution of India. 25. So, in view of the above discussion, the substantial questions of law raised by the appellants stand determined against the appellants. 26. Consequently, there is no merit in the appeal, the same stand dismissed. 27. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 10, 2011 sv