Delhi High Court
Jai Singh And Anr. vs Secretary Law And Judicial And Ors. on 22 May, 2008
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
JUDGMENT Sanjiv Khanna, J.
1. The present writ petition was filed in 1978 but the litigation between the parties was initiated in the year 1955, when predecessor in interest of the respondent Nos. 2 to 5, one Mr. Govardhan Singh had filed an application for restoration of possession of agricultural land under Section 18(2) of the Delhi Land Reforms Act, 1954 (hereinafter referred to as Act). The application was directed against Mr. Jai Singh and Mr. Rattan Singh, the petitioners, who are now represented by their legal representatives.
2. By the said application Mr. Govardhan Singh had asked for restoration of possession of agricultural land admeasuring 66 bighas and 6 biswas in khasra Nos. 2124/518, 2127/519, 2130/523, 524, 544, 608, 285 min., 1491 min., 539, 543 & 605, 604, 556 & 1493 situated in village Sultanpur, Debas, Delhi.
3. The aforesaid application was partly allowed by the Assistant Collector vide order dated 2.6.1958 in respect of 11 bighas and 12 biswas of land situated in khasra No. 604, 605, 556 and 1493. The reason given by the Assistant Collector for rejecting the claim of Mr. Govardhan Singh in respect of other khasras was that the applicant Mr. Govardhan Singh was not able to establish that he had been evicted from the said khasra numbers. With regard to 11 bighas and 12 biswas of land, the Assistant Collector agreed with Mr. Govardhan Singh that he had been evicted by Mr. Jai Singh and Mr. Rattan Singh after 1st July, 1950.
4. Both parties filed cross-appeals which were disposed of on 17.6.1959. The Additional Collector allowed the appeal filed by Mr. Jai Singh and Mr. Rattan Singh and dismissed the appeal of Mr. Govardhan Singh. The result thereof was that the application under Section 18(2) of the Act filed by Mr. Govardhan Singh was dismissed. The first Appellate Authority held that Mr. Govardhan Singh had not been able to establish that he was evicted by Mr. Jai Singh and Mr. Rattan Singh.
5. Mr. Govardhan Singh thereupon filed a second appeal before the Chief Commissioner, Delhi. The second appeal was disposed of on 19.4.1963 by restoring the order passed by the Assistant Collector and setting aside the order passed by the first Appellate Authority in respect of 11 bighas and 12 biswas of land. The effect thereof was that Mr. Govardhan Singh was given possession under Section 18(2) of the Act in respect of 11 bighas and 12 biswas of land situated in khasra No. 604, 605, 556 and 1493. The Appeal of Mr. Govardhan Singh in respect of other land measuring approximately 54 bighas and 14 biswas out of the total land of 66 bighas and 6 biswas was dismissed.
6. Mr. Jai Singh and Mr. Rattan Singh thereupon filed Civil Writ No. 641-D/1963 before the Punjab High Court, Circuit Bench at Delhi. The file of the said case was called for and has been examined by me. The relief prayed for in the said petition by Mr. Jai Singh and Mr. Rattan Singh is as under:
It is, therefore, prayed that an Appropriate Writ, Direction or Order quashing the order of the learned Chief Commissioner, Delhi, dated 19.4.1963, be passed, and the petitioners be not disturbed in their peaceful enjoyment of the land in respect of khasra Nos. 556, 604, 605 and 1493 in village Sultanpur Dabas (Delhi State). The petitioners should also be awarded costs of the petition along with any other relief which this honourable court may deem fit and proper in the interest of justice.
7. The writ petition was disposed of vide judgement dated 30th March, 1973 holding that the Chief Commissioner had failed to examine the matter in depth and with specific reference to the statements of Late Sub. Govardhan Singh, as well as Mr. Jai Singh. Reference was made to a document marked Ex.D/1, an agreement between Mr. Govardhan Singh and Mr. Jai Singh and Rattan Singh, in respect of 11 bighas and 12 biswas of land. The matter was remanded back to the second Appellate authority and it was directed as under:
The controversy between the parties deserves to be redecided by the Financial Commissioner who is the Authority now functioning in substitution of the Chief Commissioner who had originally disposed of case No. 336 of 1959. The Financial Commissioner acts under the authority delegated to him by the Lieutenant Governor. The order made on the 19th of April, 1963 is set aside. The Financial Commissioner will decide afresh the appeal which had been filed by late Sub. Govardhan Singh before the Chief Commissioner and the parties will appear before him on the 20th of April, 1973. The petition is disposed of.
8. After the remand, the matter was heard and disposed of by the then learned Law Secretary by order dated 9.1.1978. It was held in this order that Mr. Gobardhan Singh is entitled to possession of entire land measuring 66 bighas and 6 Biswas and the application under Section 18(2) of the Act should be allowed in entirety. The said order dated 9.1.1978 is impugned in the present writ petition.
9. The petitioners (Mr. Jai Singh and Mr. Rattan Singh, now represented by their legal representatives) have filed an application bearing CM No. 1412/2006 raising additional grounds that the order of remand was limited to 11 bighas and 12 biswas of land and not the entire 66 bighas and 6 biswas of land. The plea raised in CM No. 1412/2006 is legal and was also raised before the learned Law Secretary before he had passed the order dated 9.1.1978. Mere delay is not sufficient and good ground to reject the application, as the delay by itself has not caused any prejudice and the writ petition was dormant after admission. The application was filed after the writ petition had come up for regular hearing. Law of amendments and additional grounds is liberal. It has not been shown that the petitioners have gained an advantage by delaying the application raising additional grounds. Additional grounds raised are legal and litigants have to rely upon legal advice. Accordingly, I feel that petitioners are entitled to raise additional grounds. As parties had addressed arguments on merits also on the additional grounds, I proceed to examine the additional grounds raised on merits.
10. By Order dated 19.4.1963, the appeal filed by Mr. Govardhan Singh was partly allowed and partly dismissed. The application filed by Mr. Govardhan Singh under Section 18(2) of the Act in respect of 54 bighas and 14 biswas of land, was dismissed by the Chief Commissioner by his order dated 19.4.1963 holding that there was no evidence or material to show that Mr. Govardhan Singh was evicted from the said land. However, the appeal in respect of 11 bighas and 12 biswas of land in khasra Nos. 556, 604, 605 and 1493 was allowed holding that Mr. Govardhan Singh had been able to establish his possession and eviction. It is an admitted case that Mr. Govardhan Singh did not challenge order dated 19.4.1963 passed by the Chief Commissioner to the extent that his appeal in respect of 54 bighas and 14 biswas of land was dismissed. Thus, Mr. Govardhan Singh accepted the order passed by the Chief Commissioner. This part of the order has attained finality. Mr. Jai Singh and Mr. Rattan Singh had filed the Writ Petition No. 641D/1963 limiting their prayer and challenge to the order passed by the Chief Commissioner in respect of 11 bighas and 12 biswas of land. They had no cause or occasion to challenge and question the order passed by the Chief Commissioner in respect of land with respect to which the application under Section 18(2) of the Act, was dismissed. To that extent, the Chief Commissioner had decided the appeal in their favour. I have quoted the prayer clause in the Writ Petition which specifically restricted that challenge to 11 bighas and 12 biswas of land i.e. to the extent Late Mr. Govardhan Singh had succeeded before the Chief Commissioner. Mr. Govardhan Singh was entitled to challenge order dated 19.4.1963 rejecting his application for possession of the other remaining land. He did not challenge the said order. Findings and the decision of the Chief Commissioner, therefore to the extent mentioned above became final and binding.
11. I have also quoted the operative portion of the order passed by this Court vide judgment dated 30th March, 1973 in Writ Petition No. 641-D/1963 remanding back the case to the Chief Commissioner/Financial Commissioner. "The controversy" in the Writ Petition was remanded to be re-decided. The controversy in Writ Petition was restricted to 11 bighas and 12 biswas of land and not the balance land. Scope of remand was limited. Thus, when the words "the controversy between the parties deserves to be re-decided" were used, in the judgement dated 30th March 1973 reference was to the 11 bighas and 12 biswas of land which was the subject matter of the Writ Petition.
12. I have also read and examined the order dated 30th March 1973. The said order reveals that specific references were made to Ex.D/1 which has been described as a compromise agreement. The said document refers to 11 bighas and 12 biswas of land. With reference to this document it was observed by the High Court that merely accepting or admitting the same in evidence would not satisfy requirements of law and the contents of the said document were required to be proved. Reference was also made to the application made under Section 18(2), FIR and the discrepancy whether Mr. Govardhan Singh was illegally dispossessed in Kharif or Rabi season. This police complaint (FIR) was in respect of 11 bighas and 12 biswas of land and not for the rest of the land. Learned Single Judge had observed that the evidence and materials with reference to Ex. D/1, i.e.; 11 bighas and 12 biswas of land and the statement of parties in this regard had not been properly dissected and therefore the matter should be remanded back. I have highlighted these aspects to show that the case as pleaded by Mr. Govardhan Singh and accepted by the Chief Commissioner in his order dated 19.4.1963 in respect of 11 bighas and 12 biswas of land was different from the evidence and material relied upon by Mr. Govardhan Singh in respect of the remaining land.
13. The question whether the remand is limited/specific or is an open remand depends upon the Order passed by the Appellate Court or the Writ Court and what was the purpose and the object behind making the remand order. For this purpose, the entire appellate order, in this case the Order dated 30th March, 1973 passed by the Writ Court, has to be read as a whole in a proper context. I do not think the above order of remand was one of open remand i.e. an order that entitled the Financial Commissioner/the Law Secretary to decide the entire appeal relating to 66 bighas and 6 biswas. The order of remand was restricted to the subject matter of the writ petition i.e. 11 bighas and 12 biswas of land. The intention of the court while remanding the matter back was not to permit and allow the private respondents in W.P.(C) No. 641-D/1963 to reopen and re-urge their claim in respect of 54 bighas and 14 biswas of land, which was decided against them by the earlier order dated 19.4.1963. The said respondents had not questioned and challenged the order dated 19.4.1963 in spite of the fact that they had lost the appeal for possession of the said land. The claim of the said respondents in respect of 11 bighas and 12 biswas of land was separate and distinct from the claim in respect of the remaining portion of land out of 66 Bighas and 6 Biswas of land. In respect of 11 bighas and 12 biswas of land there was an FIR and also Ex.D/1. As is noticed by me later, in respect of 11 bighas and 12 biswas of land there were proceedings between the parties before a civil court also. The order dated 30th March, 1973 disposing of W.P.(C) No. 641-D/1963 was one of limited remand restricted to 11 bighas and 12 biswas of land. The order may have been slightly ambiguously worded, but the intention of the court was apparent. The remand was restricted to the controversy i.e. 11 bighas and 12 biswas of land. The Court while remanding the matter did not discuss, examine or consider whether the order passed by the Chief Commissioner rejecting the appeal of the private respondents in respect of the land measuring approximately 54 bighas and 14 biswas was justified and correct. This aspect was not adjudicated and decided in the Writ Petition and was not in controversy. The subject matter of the Writ Petition was limited and confined to 11 bighas and 12 biswas of land only and the remaining land was not subject matter in the writ. Exhibit D-1 which was repeatedly referred to in the Order dated 30th March, 1973, also only refers to 11 bighas and 12 biswas of land and no reference is made to the remaining 54 bighas and 14 biswas of land. Similarly, when reference was made to statements recorded in Suit No. 110 of 1953, the reference was only to 11 bighas and 12 biswas of land.
14. On the question of open and limited or restricted remand, it will be appropriate to refer to Paper Products Ltd. v. Commissioner of Central Excise reported in (2007) 7 SCC 352. The Supreme Court noticed the remand order passed by the Tribunal and held that as the subject matter of the appeal before the Tribunal was relating to a particular plea/issue, the case was one of limited remand in respect of the said issue or plea. The Supreme Court quoted with approval an earlier decision in the case of Mohan Lal v. Anandibai in which it was observed as under:
9. Lastly, counsel urged that now that the suit has been remanded to the trial court for reconsidering the plea of res judicata, the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Exhibit P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by learned Counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial court and the first appellate court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata, and has added that the trial court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata.
15. As in the case of Mohan Lal (supra), the High Court was not called upon and was not required to consider whether the Order dated 19.4.1963 dismissing the appeal of Mr. Govardhan Singh in respect of 54 bighas and 14 biswas of land was correct or incorrect. That was not the subject matter of W.P.(C) No. 641-D/1963. The subject matter of the said writ petition was restricted to 11 bighas and 12 biswas of land of which possession was directed to be given to Mr. Govardhan Singh and was made subject matter of challenge in the said writ petition by Mr. Jai Singh and Mr. Rattan Singh.
16. Learned Law Secretary while disposing of the appeal by the impugned Order dated 9th January, 1978 has observed that in the counter affidavit which was filed in Writ Petition No. 641-D/63, legal representatives of Mr. Govardhan Singh had also asked for possession of the remaining land. I have examined the counter affidavit filed in the said Writ Petition on behalf of the private respondents herein but find that there is no such averment. No prayer was made in the said counter affidavit. In the counter affidavit it is not stated that the impugned Order dated 19.4.1963 to the extent that the applicants therein were refused relief with respect to any land beyond the said 11 bigha and 12 biswas, was bad and illegal. There are no such allegations in the affidavit nor any grounds of challenge were raised. The private respondents in the written submissions have rightly pointed out that prior to the amendment of Code of Civil Procedure in 1976 there was no provision for filing of cross objections by respondents who were not aggrieved by a decree. As observed by the Supreme Court in Banarsi v. Ramphal a party in whose favour a decree stands in entirety is neither required, nor entitled to file cross objections, even if a finding has been given on a particular aspect/issue against the said party. Cross objections or a cross appeal is required to be filed where a decree is partly in favour of one party and partly in favour of another. In case Mr. Govardhan Singh was aggrieved by the Order dated 19.4.1963, partly dismissing the appeal, he should have filed a writ petition challenging the said order to that extent. Mr. Govardhan Singh and after his death the private respondents kept quiet and accepted the said order. The Order rejecting the appeal in part became final and binding. It was not the intention of the Writ Court to set aside the findings of the Financial Commissioner which Mr. Govardhan Singh had accepted.
17. In the counter affidavit filed by Mr. Risal Singh, son of Mr.Govardhan Singh in Writ Petition No. 641-D/63, reference is made to other khasras and land not covered by Khasra Nos. 604, 605, 1493 and 556 in the following terms:
17. Mr. Govardhan Singh the original respondent No. 2 was a tenant of khasra No. mentioned in Para No. 1 of the petition, except Khasra Nos. 604, 605, 1493 and 536 (556?). The petitioners wanted to evict the original respondent No. 2 from the land mentioned in those khasra Nos. The original respondent No. 2, thereupon filed a suit before the revenue Assistant for declaration and permanent injunction of his status as a tenant under Section 77 Sub Clause (1) Punjab Tenancy Act.
The said suit came up for hearing before the Revenue Assistant on 25.9.1953 and on that date there was a compromise between the parties. By this agreement the present petitioners conferred Tenancy rights in Khasra Numbers in dispute on Mr. Govardhan Singh as a consideration of his relinquishing his tenancy rights in the Khasra Numbers which were in dispute in that case. Attested copies of the statement of the petitioner and Mr. Govardhan Singh Respondent No. 2 and the order passed thereon by the Revenue Assistant are marked Annexures 'K', 'L' and 'J' respectively and their English translation are marked Annexures 'K1', 'L1' and 'J1' respectively. Original respondent No. 2 thus became a tenant of these four Khasras Nos. Thereafter original Respondent No. 2 entered into possession of these Khasra Nos. as a tenant and was recorded as such in Kharif 1953. It seems that the petitioners were never honest in their intentions. Having deprived the said respondent of his tenancy rights in Khasra Nos. of which he was originally a tenant and after handing over the possession to him of the Khasra Nos in dispute as a tenant, the petitioners filed a suit based on false allegations claiming that they were in actual physical possession of these khasra Nos. The fact that these allegations were false to the knowledge of the petitioners is apparent from the fact that it was admitted by the petitioners themselves in their reply marked Annexure 'I' that the original respondent Nos. 2 was their tenant of these Khasra Nos. and it is also recorded as such in the Khasra Girdawri.
That inspite of the above facts the petitioners made false allegations in their duly verified plaint Annexure 'A' that they were in cultivating possession. The said case was fixed for hearing on 19.2.54 in the civil court. On 15.2.54 the petitioner trespassed into the land in dispute and cut away and destroyed the crops sown by the original respondent Nos. 2 in Khasra No. 604, 605/1493 and 556 i.e. the land in dispute. The father of respondent i.e. Mr. Govardhan Singh reported the matter to the police and copy of the police report is Annexure 'N' and its English translation is Annexure 'N1'.
That on 19th February, 1954 the suit came up for hearing before the Sub Judge, Delhi. The original Respondent No. 2 was not an original inhabitant of the village of petitioners, while the other residents of the village were the original inhabitants and belongs to Gotra different from my Gotra and that of my father. My father was preva-iled upon to feel that he would not be able to get any witness in his favour and would not succeed. Thus coerced he was made to agree to the compromise recorded in their Annexure 'B'. He was also forced to give possession on or about Ist July, 1954 in pursuance of this void compromise. It may be mentioned here that it has been held in the impugned order the possession was taken by the petitioners from the original respondent No. 2 by show of force.
18. I may note here that in para 1 of the Writ Petiton No. 641-D/63, Mr. Jai Singh and Mr. Rattan Singh had mentioned that they are owners of fields bearing Nos. 524, 2124, 518, 2127/519, 2130/523, 608, 285, 1491, 604, 605, 1493 and 556 in Vill. Sultanpur Dabas since long and revenue entries exist to that effect. In para 2 of the writ petition it was stated that Mr. Govardhan Singh was a tenant of some of the portions of the land. In this regard, paragraphs 1 and 2 of the Writ Petition No. 641-D/63 and reply to the said paragraphs filed by Mr. Risal Singh son of Mr. Govardhan Singh, for the sake of convenience are reproduced below:
WRIT PETITION NO.641-D/63
1. That the petitioners are the owners of fields bearing numbers 524, 2124, 518, 2127/519, 2130/523, 608, 285, 1491, 604, 605, 1493 and 556 in village Sultanpur Dabas, Delhi, since long and the entries to that effect exist in the revenue records.
2. That the respondent No. 2 was a tenant of the petitioners in respect of some portion of the aforesaid plots.
REPLY by Mr. Risal Singh
1. Para No. 1 is denied. The petitioners are no longer the owners of fields No. 604, 605, 1493 and 556. There has been consolidation of holdings in the village and the father of respondent No. 2 and 3 i.e. the original respondent No. 2 Mr. Govardhan Singh, had been declared bhumidar in respect of fields No. 6/22, 6/23, 67/3 and 67/2 min. and 66/1 and 65/5 on 14.5.59 by the Revenue Assistant, Delhi. Copy of the order is Annexure 'H' and its English translation is Annexure H-1. These Khasra Nos. were allotted to father of the respondent by the consolidation officer in lieu of his tenancy rights held by him in Khasra No. 604, 605, 1493 and 556 in the year 1953-54. The petitioners thus stand divested of the ownership rights regarding these Khasra Nos.
2. The facts stated in para No. 2 are correct to the extent that in the relevant year 1953-54 Mr. Govardhan Singh, the father of respondent No. 2 and 3 was recorded tenant of Khasra No. 604, 605, 1493 and 556.
19. It is therefore apparent from the above paragraphs that Mr. Govardhan Singh and after his death his legal representatives were seeking and had restricted their claim only in respect of 11 bighas and 12 biswas of land located in Khasra Nos. 604, 605, 1493 and 556 and not in respect of other Khasra nos. when the Writ Petition No. 641-D/63 had come up for hearing.
20. Learned Counsel for the private respondents during the course of arguments had referred to the application under Section 18(2) of the Act, reply given by Mr. Jai Singh and Mr. Rattan Singh as well as the averments made in the present Writ Petition wherein details of the land measuring 66 bighas 6 biswas is mentioned and it is stated in paragraph 2 that the aforesaid land was in occupation of Mr. Govardhan Singh as non-occupancy tenant on yearly rent. The statements made by the petitioners in the reply to the application under Section 18(2) of the Act and the Writ Petition gets explained by the averments made in the counter affidavit filed by Mr.Risal Singh son of Mr. Govardhan Singh in Writ Petition No. 641-D/63, which have been quoted above.
21. In this regard it is important to note two litigations between Mr. Govardhan Singh and predecessors in interest of the petitioners, Mr. Jai Singh and Mr. Rattan Singh. On 18th September, 1953, Mr Govardhan Singh had filed a suit for declaration and injunction under Section 77 of the Punjab Tenancy Act, 1887. The matter was disposed of as compromised and settled between the parties. As per the statements of Mr. Govardhan Singh and the said Mr. Jai Singh and Mr. Rattan Singh, there was an agreement amongst the parties with Mr. Govardhan Singh being acknowledged and accepted as a non-occupancy tenant in respect of 10 bighas and 11 biswas of land in Khasra Nos. 604, 605, 1493 and 556 on rent of Rs. 100/- and Mr. Jai Singh and Mr. Rattan Singh were accepted as in cultivatory possession of the said land. Mr. Govardhan Singh made a statement that in view of the settlement he wanted to withdraw the Suit. No decree for possession or eviction was passed. No decree for possession was executed against Mr. Govardhan Singh. The suit was disposed of vide Order dated 24th Oct., 1953 after recording that Mr. Govardhan Singh shall remain as a non-occupancy tenant of Kharsa No. 604, 605, 556 and 1493. The order does not mention and refer to other khasra numbers.
22. The second Suit was filed by Mr. Jai Singh and Mr. Rattan Singh against Mr. Govardhan Singh and was registered as Suit No. 10/1954. The said Suit was for permanent injunction with a direction for restraining Mr. Govardhan Singh from interfering with possession of land measuring 11 bighas and 12 biswas in Khasra Nos. 604, 605, 1493 and 556. After filing of the Suit, Mr. Govardhan Singh on 15th February, 1954 had recorded an FIR under Section 440 of the Indian Penal Code alleging that on 13th February, 1954 Mr. Jai Singh and Mr.Rattan Singh had wrongfully and illegally trespassed into 11 bighas and 12 biswas of land in the aforesaid Khasras and occupied the same. The following decree was prayed for:
a) It may be declared that the plaintiffs are the owners and in peaceful possession of the land in suit detailed above.
b) the defendant may be restrained by permanent injunction from interfering with plaintiffs' peaceful possession.
c) the cost of suit may also be awarded to the plaintiffs.
d) Any other relief which the court considers fit may also be given.
23. The matter was compromised and settled and decree in terms of the prayer made the plaint was passed on 19th February, 1954.
24. A vital and an important distinction between the two suits may be noticed. In the first suit, the parties had compromised the matter out of court but the suit was disposed of as withdrawn and no compromise decree was passed in respect of land, other than land in Khasra Nos. 604, 605, 556 and 1493. The final order in respect of land, other than land in Khasra Nos. 604, 605, 556 and 1493, was under Order 23, Rule 1 of the Code of Civil Procedure, 1908. In the second suit, after the out of court settlement between the parties, a decree for declaration and injunction was passed in favour of Mr. Jai Singh and Mr. Rattan Singh and against Mr. Govardhan Singh. The suit was disposed off under Order 23 Rule 3 of the Code of Civil Procedure, 1908.
25. With this factual back ground, I proceed to examine the provisions of the Act, interpret them and apply them to the facts. After independence land reforms were initiated with each State passing legislations with the object and purpose of doing away with Zamindari system and conferring rights to the tiller. The object was to modify the existing zamindari system and create a uniform body of peasant proprietors without intermediaries. The Legislations and the enforcement faced hurdles and challenges. This took time and therefore retrospective provisions were enacted. The Act in question was enacted as a reform measure is a beneficial legislation for giving rights called bhumidari rights to the actual occupant and tiller and to do away with ownership rights which were vested and belonged to the Zamindars. The Act was enforced with effect from 1st July, 1954 but, to protect and ensure effective implementation, Section 18 of the Act was given retrospective effect w.e.f. 1st July, 1950. Section 18 of the Act reads as under:
18. Contract agreement or eviction to defeat provisions of this Act to be void.-
(1) Any contract of agreement made between a proprietor and any person on or after the 1st day of July, 1950, which has the effect, directly or indirectly of defeating the provisions of this Act shall be and is hereby declared null and void.
(2) Notwithstanding any decree or order where a tenant of sir or sub-tenant of tenants referred to in Sub-section (1) of Section 10 or sub-tenant of tenants referred to in Section 12 or a non-occupancy tenant referred to in Clause (f) of Sub-section (1) of Section 13 was evicted from land after 1st July, 1950, on any ground other than for arrears of rent, the tenant or the sub-tenant shall be entitled to regain possession thereof on his making an application in this behalf to the Revenue Assistant [and, shall on regaining possession have the same right as he would have had but for such eviction decree or order]:
Provided that the land is not in the possession of any other tenant in the fasli year immediately before the commencement of this Act.
[(3) Nothing in this section shall affect the rights of a proprietor in any land held or occupied at the commencement of this Act for purposes other than those mentioned in Clause (13) of Section 3.]
26. Section 18 consists of two separate and distinct parts and confers two rights. The requirements of Sub-sections 1 and 2 are different. Subsection (1) of Section 18 deals with contracts or agreements between a proprietor of land and any other person on or after 1st day of July, 1950. Such agreements, when they have the effect of directly or indirectly defeating the provisions of the Act are declared to be null and void. Section 18(1) of the Act was enacted to give protection to the actual tiller or bhumidar who may have entered into an agreement or contract with the proprietor of the land after 1st day of July, 1950 giving up his rights or surrendering possession, etc. Agreements of such nature which had the effect of directly or indirectly defeating the provisions of the Act were declared null and void. Not every kind of agreement between the owner and a third person was declared null and void. Only agreements which had the effect of directly or indirectly defeating the provisions of the Act were declared to be void. Thus to establish a case under Section 18(1) of the Act, the requirements are:
(i) There was an agreement or a contract between the applicant and the proprietor or owner;
(ii) The agreement was on or after 1st day of July, 1950 and
(iii) The agreement had the effect of directly or indirectly defeating the provisions of the Act.
27. Mr. Govardhan Singh had not filed any application under Section 18(1) of the Act. The application filed by him before the Revenue Assistant/ Assistant Collector was under Section 18(2) of the Act. The Revenue Assistant, the first Appellate Authority and the second Appellate Authority in its Order dated 19th April, 1963 have proceeded on the basis that the application was under Section 18(2) and not under Section 18(1) of the Act. The Writ Petition and the judgment dated 30th March, 1973 have also proceeded on the basis that the application filed by Mr. Govardhan Singh was under Section 18(2) and not under Section 18(1) of the Act. In order to establish a case under Section 18(1) of the Act, Mr. Govardhan Singh was required to establish and prove that there was an agreement or contract between him and Mr. Jai Singh and Mr. Rattan Singh that had the effect of directly or indirectly defeating the provisions of the Act. This required proof by leading evidence and by producing cogent material. Mr. Govardhan Singh had the option and the right to challenge the agreement, which was mentioned and recorded while disposing of Suit No. 110 of 1953, filed by him before Revenue Assistant under Section 77 of the Punjab Tenancy Act, 1887. Mr. Govardhan Singh had to plead and establish that the agreement was entered into on or after 1st day of July, 1950 and the purpose was to directly or indirectly defeat the provisions of the Act. No such pleading was made in the application under Section 18(2) of the Act. Mr Govardhan Singh preferred not to question and challenge the said agreement but, relied upon the same for the purpose of making out a case/claim under Section 18(2) of the Act. Perhaps, Mr. Govardhan Singh thought it prudent not to raise and make a claim under Section 18(1) of the Act and decided to restrict his claim under Section 18(2) of the Act. The agreement was relied upon to establish Mr. Govardhan Singh's claim in respect of land in Khasra Nos. 604, 605, 556 and 1493 measuring 11 bighas and 12 biswas. Therefore, he accepted the order dated 19th April 1963 in respect of 54 bighas and 14 biswas of land. Challenging the said agreement would have probably jeopardized his rights and claim in respect of 11 bighas and 12 biswas of land. The stand taken by Mr.Govardhan Singh in Writ Petition No. 641-D/63 was that pursuant to mutual exchange, he had given up his rights in respect of some land to get rights in respect of 11 bighas and 12 biswas of land.
28. An application under Section 18(1) of the Act could be filed within one year from the enforcement of the Act as stipulated in Sch. 1 of the Act.
29. The judgment of the High Court dated 30th March 1973 also proceeds on the basis that the application was under Section 18(2) of the Act and deals with the issue whether Mr. Govardhan Singh was evicted from 11 bighas and 12 biswas of land after 1st July, 1950. The question that the agreement entered into between the parties and referred to by the Revenue Assistant in his order dated 24.10.53 was void under Section 18(1) of the Act was never raised. This plea was not specifically taken. The only question that was raised before the High Court in Writ Petition No. 641D/1963 was whether the agreement - Exh.D-1mentioned in the order/decree passed by civil Judge in Suit No. 10/1954 was in itself sufficient proof and established possession of Mr. Govardhan Singh.
30. Learned Counsel for legal representatives of Mr. Govardhan Singh had submitted that the Revenue Assistant/Assistant Collector while disposing of the application under Section 18(2) of the Act has made reference to Section 18(1). The said reference was made for the purpose of interpreting the word "eviction" as used in Section 18(2) of the Act. The application was not treated as one filed under Section 18(1) of the Act.
31. My attention was drawn to the decision of the Assistant Collector on issue Nos. 1 and 2 and the observations in the Order that Exh.D-1/Agreement was null and void because it directly defeats the provisions of the Act and it was made after 1st July, 1950. The said observations have not been made by the Assistant Collector as he had treated the application under Section 18(2) as also filed under Section 18(1) of the Act. The said observations were made in the context of the defence raised by Mr. Jai Singh and Mr. Rattan Singh that Mr. Gobardhan Singh had voluntarily surrendered possession of land and was not evicted from 11 bighas and 12 biswas of land. Exh.D-1 was an agreement which was entered into between the parties and subsequently became subject matter and got merged into the court decree passed in Suit No. 10 that was filed before the Civil Judge by Mr. Jai Singh and Mr. Rattan Singh against Mr. Gobardhan Singh. The stand taken by Mr. Gobardhan Singh in his application under Section 18(2) of the Act was that he was dispossessed from Khasra Nos. 604, 605, 556 and 1493 and thereafter a civil suit was filed against him by Mr. Jai Singh and Mr. Rattan Singh. The Civil Suit was compromised with Mr. Gobardhan Singh giving up his rights. The compromise was in the form of Agreement (Exh.D-1). The compromise got merged into the decree of the court passed by the Civil Court.
32. It will be appropriate to refer, to the Full Bench judgment of the Allahabad High Court in the case of Hari Nath v. Ram Pratap Singh and Anr. . The view and the opinion of Jagdish Sahai, J. had concurrence and acceptance of R.S. Pathak, J. ( as his lordship then was). S.N. Singh, J. gave a concurrent judgment but the reasoning and interpretation made by Jagdish Sahai and S.N. Singh, JJ. are different. The said case involved interpretation of Sections 232 and 20 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Explanation 1 to Section 20 was given retrospective effect to include a person evicted from land after 30th June, 1948 notwithstanding any order or decree. The parties in the said case had entered into a compromise before a Civil Court pursuant to which the tenant had surrendered a part of his tenancy but retained tenancy rights on some of the land. Jagdish Sahai, J. held that an agreement got merged into a compromise decree. A compromise decree is as good as a decree passed on merits of the case after determining respective rights of the parties. Once an agreement/compromise is accepted by the Court it gets stamped as a Court decree. It operates as estoppel and can be executed as any other decree passed on merits. The term "eviction", it was held is generally used in the sense of compulsive dispossession and for the purpose of the said Act should be given a wide meaning. It was also observed that an element of compulsion existed when the compromise was entered into and the compromise decree was passed. In these circumstances, Jagdish Sahai, J. observed that a willing compromise or agreement was immaterial because the compromise was followed by a decree which was put to execution and the tenant was dispossessed through process of law. It was observed that the term "eviction" means expulsion by assertion of paramount title. It is an act of the landlord with the intention and having the effect of depriving the tenant of the demised premises. It applies to every case of expulsion. It implies ouster of a tenant by a landlord. The majority view however distinguished a Division Bench judgment dated 22nd July, 1958 of Allahabad High Court in Writ Petition No. 2023/1958 and a Single Judge decision in Sakur Sai v. Ram Charittar Singh reported in 1963 R.D. 151 (All.) on the ground that in the said cases, the tenant had voluntarily surrendered his interest in the land and therefore, he could not turn around and claim that he was evicted for the purpose of Section 232 r/w Section 20 of the U.P. Zamindari Abolition and Land Reforms Act. S.N. Singh, J., on the other hand, felt that the term "eviction" would include even voluntary surrender and the two Sections would apply even if a tenant was not able to establish eviction. It was observed that only two facts have to be proved by a tenant to regain possession: firstly, the applicant was a recorded occupant of land and secondly, that he was not in possession on the date when the application was filed. Eviction of the tenant by the landlord need not be proved.
33. The provisions of the Act and U.P. Zamindari Abolition and Land Reforms Act are slightly different. The majority view on interpretation of the term "eviction" is in consonance with the provisions of Section 18(2) of the Act and more acceptable. Section 18(1) as already interpreted above deals with mutual agreements and contracts and Section 18(2) deals with eviction. The requirements and conditions of the Sections 18(1) and 18(2) are also different.
34. In the impugned Order, the learned Law Secretary has failed to notice the distinction between Section 18(1) and 18(2) of the Act and the fact that Mr. Govardhan Singh had filed an application under Section 18(2) of the Act and not under Section 18(1) of the Act. Requirements of Section 18(2) of the Act are entirely different. Therefore legal representatives of Mr. Govardhan Singh are not entitled to invoke and base their claim on Section 18(1) of the Act.
35. I may here also deal with the contention raised by the learned Counsel for the legal representatives of Mr. Govardhan Singh that surrender of tenancy rights can be only by a mutual agreement. In this regard, learned Counsel for the private respondents had referred to Section 50 of the Punjab Tenancy Act, 1887. My attention was also drawn to the observations made by the Law Secretary with reference to Section 111(e) of the Transfer of Property Act, 1882 and the observations of the Supreme Court in W.H. King v. Republic of India and Ors. . As noticed by the Supreme Court in the said case, the Court was not examining distinction between 'surrender of tenancy' by mutual agreement or 'abandonment of tenancy'. The Supreme Court in the case of W.H. King (supra) itself, noticed that the question whether 'abandonment of tenancy' comes within the meaning of relinquishment did not arise for consideration in the said case. 'Abandonment of tenancy' does not amount to surrender. Abandonment is unilateral act by a tenant. Surrender takes place when the landlord accepts possession. This need not take place simultaneously with abandonment. Acceptance of possession can be subsequent in point of time. (Refer, V.P. Naidu v. Sethu Udayar reported in AIR 1974 Ker. 132). Thus, to make out and claim benefit under Section 18(1) of the Act, Mr. Govardhan Singh had to make out an entirely different case, plead it and prove it. The Transfer of Property Act also makes a distinction between implied surrender and surrender by an agreement. Under Section 111(f) there can be implied surrender of tenancy rights.
36. Thus in view of above discussion, we have to examine whether Mr. Gobardhan Singh now represented by his legal representatives have been able to make out a case under Section 18(2) of the Act. Section 18(2) of the Act gives right to ask for re- possession if a tenant, sub-tenant etc. has been evicted from land on or after 1st of April, 1950. The said Section stipulates that a non-occupancy tenant, or a sub-tenant who is evicted from land after 1st of July, 1950 shall be entitled to regain possession by moving an application before the Revenue Assistant. The said Section has a non-obstante clause and the "substantive provision" or the right conferred applies notwithstanding a decree or order of a Court except in cases where a decree for eviction has been passed on the ground of arrears of rent. The last portion of Section 18(2) further clarifies that the rights of sir, sub-tenant or non-occupancy tenant on repossession shall be the same as they would have been but for such eviction decree. Section 18(2) of the Act has to be given purposive interpretation with a view to ensure that the intention of the Legislature is given full effect to. For the purpose of interpretation of Section 18(2), the object and purpose behind the enactment including Section 18(1) of the Act has to be kept in mind. Section 18(1) of the Act as already interpreted above, deals with agreements and contracts after 1st July, 1950, entered into with the intention of defeating the provisions of the Act. These have been declared null and void. Section 18(2), on the other hand, entitles beneficiaries of the Act to regain possession if they have been evicted from the land after 1st July, 1950. "Eviction" under Section 18(2) of the Act deals with coercive or punitive action contrary to the wishes of a tenant, whereas an agreement or a contract is based on mutuality.
37. Learned Counsel for the petitioner submitted that Section 18(2) of the Act will apply only to cases where a tenant etc. has been evicted by a court process i.e. legally as per procedure prescribed by law and the said Section will not apply where a tenant etc. is evicted illegally or when a landlord trespasses and occupies land. It was accordingly argued that Mr. Govardhan Singh and his representatives have not been able to make out a case under Section 18(2) of the Act as there was no court decree and the answering respondents were not evicted through a court process. It was submitted that the case of the private respondents themselves is that Mr. Govardhan Singh was illegally evicted and dispossessed.
38. Section 18(1) and (2) form a complete code and give protection to tenants etc. against evictions be it pursuant to mutual agreement that are covered by Section 18(1) of the Act or eviction by any mode including eviction through the process of Court as provided in Section 18(2). Section 18(2) of the Act deals with all kinds of evictions, other than surrender of land by mutual agreement or cases of abandonment. Vacation of property by mutual agreement will result in surrender, and the word "eviction" as discussed above with reference to Harinath case (supra) refers to unilateral action which can be coercive.
39. The Legislature, has been extra careful and has included "eviction" through court process in Section 18(2) of the Act. A non-obstante clause was incorporated to protect and give benefit under the said legislation even if a tenant etc. has been evicted pursuant to a court decree, other than a decree for non-payment of rent. It will not be correct to interpret Section 18(2) as applicable only to court decrees and not to illegal evictions unilaterally forced upon by the landlord. This will result in a premium or an advantage to a landlord who takes law on his own hands and evicts a tenant and put a landlord who has obtained decree for eviction from a court at a disadvantageous position. This obviously was not the intention or the purpose behind the legislation. Object and purpose behind Section 18(2) is to restore possession in all cases of eviction after 1st July, 1950. Merely because a tenant was entitled to also file a suit under the civil law or under the Punjab Tenancy Act does not make any difference. Law recognizes that there can be concurrent remedies with a right of choice.
40. The word "eviction" cannot be restricted to only eviction by a Court. It connotes dispossession which can take place by due process of law or by a landlord or third party taking possession without following due process of law. The word "eviction" denotes depriving a person of his possession. It is expulsion of a lessee out of the whole or part of the demised premises. Dispossession as a result of force will be covered by the word "eviction" for the purpose of Section 18(2) of the Act. It is not necessary to interpret the word "eviction" as used in Section 18(2) by making reference to legal dictionaries as the word "eviction" has to be understood and defined in the context of Section 18(2) of the Act. However, even in the Halsbury's Law of England, the word "eviction" has been defined as under:
1213-Eviction under title paramount similarly, in order to constitute an eviction by a person claiming under title paramount, it is not necessary that the tenant should be put out of possession or that ejectment should be brought. A threat of eviction is sufficient and if the tenant, in consequence of such threat, attorns to the claimant, he i.e. the tenant can set this up as a eviction by way of defence to an action for rent, subject to his proving the evictor's title. There is no eviction, however, if the tenant gives up possession voluntarily.
41. In Stout's Legal Dictionary, the word "eviction" has been defined to mean expelled, removed, put out, each describing different modes by which expulsion may have taken place. It has also been observed that the word "eviction" has come to have a popular meaning and is applied to every kind of expulsion. "Eviction" implies trespass but every trespass need not culminate into eviction as it is something more permanent in character. Even in Black's Law Dictionary, the word "eviction" has been defined as ejectment of a tenant from a property. It includes wrongful dispossession or ouster. However, while defining the word "evict" a more restrictive meaning has been given in Black's Law Dictionary to mean a act or process of legally dispossessing a person from his land or rental property. In Ouseph Thomma 1959 Ker Law Journal 34, it has been observed that the word "eviction" is actual expulsion of the lessee. It connotes dispossession. In Qadir Bux v. Ramchand and Ors. the terms "dispossession" and "discontinuance" were interpreted. "Dispossession", it was observed, signifies an act by which a person comes in and drives out another from possession of a property. It is not voluntary but against the wishes of the person in possession. "Discontinuance" implies voluntary act and abandonment of possession followed by actual possession of the other. There must be intention to abandon possession, before there can be discontinuance. But abandonment cannot be assumed but has to be established and proved. It can be admitted. In Harinath v. Ram Pratap Singh (Supra) as mentioned above it was observed that the word "eviction" as used in U.P. Zamindary Abolition and Land Reforms Act, includes eviction by process of law, as when a decree of eviction is executed as well as eviction by trespass or by force. It includes all types of evictions i.e.; acts of expulsion.
42. As far as dispossession of Mr. Govardhan Singh from 11 bighas and 12 biswas of land are concerned there is ample evidence and material. Learned Law Secretary has referred to the statement of the parties in this regard. It is also clear from the pleadings of the parties that Mr. Govardhan Singh was in possession of the said land. There was also an agreement and possession of Mr. Govardhan Singh was accepted by Mr. Jai Singh and Mr. Rattan Singh. They had in 1954 filed a case for injunction against Mr. Govardhan Singh. An FIR was also registered against Mr. Jai Singh and Mr. Rattan Singh. The discrepancy with regard to the kharif and rabi season does not make the case of Mr. Govardhan Singh, false or wrong. Once possession of Mr. Govardhan Singh is accepted then the onus was on Mr. Jai Singh and Mr. Rattan Singh to show and establish how they entered into possession. No such material is placed on record. The fact that Mr. Jai Singh and Mr. Rattan Singh had filed a civil suit and there was a police complaint shows and establishes a dispute. As far as other land is concerned, the same was surrendered pursuant to mutual exchange as per the stand and the affidavit filed by Mr. Risal Singh son of Mr. Govardhan Singh in WP No. 641-D/1963. Mr. Govardhan Singh came into possession of 11 bighas and 12 biswas of land pursuant the mutual exchange. The mutual exchange or agreement could have been challenged and made subject matter of proceedings under Section 18(1) of the Act and not under Section 18(2) of the Act. Mutual agreement could also have been challenged on the ground that it was induced by force or coercion and therefore was a unilateral action amounting to eviction. However there are no allegations of this nature in the application under Section 18(2) of the Act and before this Court. No evidence and material in support thereof has been shown to me. On the other hand case of the legal representatives of Mr. Jai Singh and Mr.Rattan Singh is that there was discontinuance. In view of the above discussion, on merits also the petitioners are entitled to succeed in respect of land other than 11 bighas and 12 biswas of land in Khasra Nos. 604, 605, 556 and 1493.
43. Accordingly, the writ petition is partly allowed. The impugned order is partly set aside to the extent of land that formed part of khasra Nos. 539, 543, 2124/518, 2127/518, 544, 2130/523, 524, 608, 285 and 1490. The impugned order in respect of 11 bighas and 12 biswas of land in Khasra Nos. 604, 605, 556 and 1493 is upheld. The private respondents will be entitled to possession of 11 bighas 12 biswas of land as per the value calculated by the Revenue Authorities. The Revenue Authorities will accordingly give possession of land of equal value in accordance with the provisions of East Punjab Consolidation Act to the legal representatives of Mr.Govardhan Singh in accordance with law. They will be also entitled to mesne profits on 11 bighas 12 biswas of land. They will be paid an amount equal to Rs. 2500/- per year with effect from 1st March, 1978. The operation of the impugned order was stayed vide order dated 10th March, 1978 with a direction that the petitioners will execute a surety bond as a security for restitution. It is however clarified that the legal representatives of Mr. Govardhan Singh are entitled to make a claim for determination of actual mesne profit in accordance with law before a civil court.