Punjab-Haryana High Court
Lachhman Singh And Others vs State Of Haryana And Others on 20 February, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA No.1544 of 1993 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.1544 of 1993
Date of decision:20.02.2018
Lachhman Singh and others ... Appellants
Vs.
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. H.S.Hooda, Senior Advocate with Mr. Vivek Gupta, Advocate and Mr. C.S.Singh, Advocate for the appellants.
Mr. Puneet Jindal, Senior Advocate with Ms. Shreya Vasishtha, Advocate for the respondents.
AMIT RAWAL J.
The appellant-plaintiffs are in Regular Second Appeal against the judgment and decree of the Lower Appellate Court, whereby, well reasoned judgment and decree of the trial Court has been set aside.
Before adverting to the contention of learned counsel for the parties, it would be apt to give preface of the matter.
The appellant-plaintiffs instituted a suit on the premise that Piare being father of plaintiffs no.2 to 6 was recorded as owner in the revenue record of agricultural land measuring 489 kanals 18 marlas as mentioned in para 1 of the plaint. The Collector, vide order dated 26.12.1959 declared the area of 254 kanals 5 marlas. On account of 1 of 9 ::: Downloaded on - 11-03-2018 01:02:12 ::: RSA No.1544 of 1993 {2} enforcement of Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as "1972 Act") the Revenue Authorities recorded the defendants as owners of the area as mentioned in para 2 of the plaint. It is in this background of the matter, the suit aforementioned was filed challenging the order of revenue authorities declaring the land surplus and as well as the allotment for the purpose of utilization of the land.
The suit was contested by the State of Haryana specifically objecting with regard to maintainability of the suit, jurisdiction of the Civil Court, rather it was stated that land had already been utilized by allotting the land to the private defendants and mutation regarding the surplus land had already been sanctioned.
Since the parties were at variance, the trial Court framed the following issues:-
"1. Whether the order of revenue authorities regarding the alleged surplus area in the name of defendants and allotting the same to any person declaring any area of the plaintiff as surplus is illegal, void, without jurisdiction, ultra-vires and not binding upon the rights of the plaintiff as alleged, if so to what effect? OPP
2. Whether the Civil Court has no jurisdiction to try the present suit? OPD
3. Whether the plaintiff has no locus standi to file the present suit,if so to what effect? OPD
4. Whether the suit is time barred, if so to what effect?
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5. Whether the plaintiff has not exhausted the remedies available under the Haryana Ceiling Act, if so to what effect? OPD
6. Whether the plaintiff has not come to the Court with clean hands, if so to what effect? OPD
7. Whether the defendant no.2 to 5(c) are in possession of the suit land according to their allotment respectively? OPD2-5
8. Whether the defendants are entitled to special costs under S.35A CPC? OPD2-5.
9. Relief."
The plaintiffs produced on record following documents:-
Ex.P1, copy of school transfer certificate of Sukhbir Singh showing his date of birth as 30.1.1961 Ex.P2, copy of school transfer certificate showing the age of Rajbir as 12.4.1937.
Ex.P3, copy of school transfer certificate showing the age of Jagbir Singh as 16.12.1951 Ex.P4, copy of school transfer certificate of Balwan Singh- plaintiff showing his date of birth as 10.6.1949. Ex.P5, copy of school transfer certificate of Laxman Singh showing his date of birth as 12.5.1948.
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RSA No.1544 of 1993 {4}
Ex.P6, copy of jambandi for the year 1963-64, Ex.P7, copy of jamabandi for the year 1967-68, Ex.P8 copy of jamabandi for the year 1972-
73, Ex.P9, copy of jamabandi for the year 1977-78, Ex.P10, copy of khasra girdawari from kharif 1978 onwards and Ex.P11 copy of khasra girdawari of kharib 1983 which clearly revealed that the plaintiff still continued to be in possession of the suit land.
On the other hand, defendants produced on record Ex.D1 mutation No.917, Ex.D2 mutation No.942, Ex.D3 mutation No.943, Ex.D4 mutation No.944, Ex.D5 to Ex.D9 , copies of Rapat Roznamcha, Ex.D10 jamabandi for the year 1982-83, Ex.D12 jamabandi for the year 1982-83, Ex.D13 to Ex.D15, khasra girdawari from 1984-1986.
The trial Court on the basis of preponderance of evidence decreed the suit. The appeal preferred before the Lower Appellate by the State of Haryana was allowed. It is in this background of the matter, the present Regular Second Appeal.
Mr. H.S.Hooda, learned Senior counsel assisted by Mr. Vivek Gutpa and Mr. C.S.Singh, Advocate appearing on behalf of the appellants submitted that the Lower Appellate Court has committed illegality and perversity in allowing the appeal of State of Haryana by rejecting the suit on the ground that it was barred by law of limitation, much less the Civil Court did not have jurisdiction. He submitted that any order which had been passed without jurisdiction and ultra vires, jurisdiction of the Court under Section 9 CPC can always be pressed into service. The revenue record brought on record conclusively proved possession of the plaintiffs. No 4 of 9 ::: Downloaded on - 11-03-2018 01:02:13 ::: RSA No.1544 of 1993 {5} evidence had been led by the defendants regarding the dispossession. At least, the Court ought to have granted the injunction. The lower Appellate Court also recorded a finding that the suit was barred under Section 26 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as "1953 Act") but no valid reasons have been given as to how and in what manner the same was barred. The defendants failed to prove on record to establish that the land in question was ever utilized. Since the possession remained with the appellants, the State of Haryana could not have taken the aid of Sections 8 and 12(3) of 1972 Act.
All these factors if read together would lead to irresistible conclusion that judgment and decree of the Lower Appellate Court is not sustainable in the eyes of law and prayed for allowing of the appeal by setting aside the judgment and decree of the Lower Appellate Court.
Mr. Puneet Jindal, learned senior counsel assisted by Ms. Shreya Vasishtha, Advocate appearing on behalf of the respondents submitted that judgment and decree of the Lower Appellate Court is perfectly legal and justified. The order of land declaring surplus was passed way back in the year 1959, i.e., on 26.12.1959, whereas, the suit was filed on 29.07.1982. No explanation has come forward in not availing the remedy within the time prescribed under Article 100 of the Limitation Act. The land was declared surplus under the provisions of erstwhile 1953 Act. Section 25 of the aforementioned Act, expressly barred the jurisdiction of the Civil Court against the orders of the authorities.
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RSA No.1544 of 1993 {6}
The effective date of 1972 Act, was 23.12.1972 and in view of the provisions of sub-section 3 of Section 12, the area declared surplus came being vested in the State of Haryana. The entries in subsequent jamabandis and khasra girdawari revealed that land was cultivated by the allottees on account of the fact that the same was allotted to by utilization of surplus land. The trial Court remained oblivious of the aforementioned provisions of the Act, thus, the decree passed by the Court was not sustainable in the eyes of law.
I have heard the learned counsel for the parties, appraised the judgments and decrees as well as record of both the Courts below and of the view that there is no force and merit in the submissions of Mr. Hooda.
Article 100 of the Limitation Act enables effected party to challenge the order of any authorities within a period of one years, which reads as under:-
100. To alter or set aside One year The date of the final any decision r order of decision or order by the a civil court any court or the date of the proceeding other than a act or order of the suit of any act or order officer, as the case may.
of an officer of
Government in his
official capacity.
Section 25 of 1953 Act reads as under:-
25.Exclusion of courts and authorities- Except in accordance with the provisions of this Act, the validity of any proceedings or order taken or made under this Act shall not be called in
6 of 9 ::: Downloaded on - 11-03-2018 01:02:13 ::: RSA No.1544 of 1993 {7} question in any court or before any other authority. Section 12 of 1972 Act, reads as under;-
"12. VESTING OF SURPLUS AREA. --(1) The surplus area of a landowner shall, (from the date on which it is declared as such shall be deemed to have been acquired by the State Government for a public purpose) (Vide Act No. 17 of 1976) and all rights, title and interest (including the contingent interest, if any, recognised by any law, custom or usage for the time being in force) of all persons in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance:
Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.
(2) The right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished.
(3) The area declared surplus or tenant's permissible area under the Punjab law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State
7 of 9 ::: Downloaded on - 11-03-2018 01:02:13 ::: RSA No.1544 of 1993 {8} Government with effect from the appointed day and the area which may be so declared under the Punjab Law or Pepsu Law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration. (Vide Act No. 40 of 1976) (4) For the purpose of determining the surplus area under this Act, any judgment, decree or order of a court or other authority, obtained after the appointed day and having the effect of diminishing the surplus area shall be ignored." On going through the aforementioned provisions of the Acts, order dated 26.12.1959 has remained un-challenged. If at all, the plaintiffs had any grievance, they could have availed the remedy of appeal or revision as provided in the aforementioned Act. The Haryana Govt. came with the Act in December 1972 and on promulgation of the aforesaid Act, land as per the Section 12(3), surplus land vested in the State of Haryana. The plaintiffs cannot be permitted to take the benefit of defective entries in the jamabandis and khasra girdwari showing them to be in possession but the fact of the matter is that land surplus stood vested in the State of Haryana. The land was utilized by the Haryana Utilization of Surplus and Other Areas Scheme 1976 by allotting the same to the eligible candidates and the possession was also transferred by the halqua kanungo on 20.04.1977 and 14.10.1980. Copies of mutation bearing nos.917 - Ex.D1, 942- Ex.D2, 943-
Ex.D3, 944- Ex.D4 and rapat roznamcha, Ex.D5 to Ex.D9
are the testimony of the same. Copies of jamabandis Ex.D10 to
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RSA No.1544 of 1993 {9}
Ex.D12 for the years 1982-83 and khasra girdawari entries Ex.D13 to Ex.D15 from 1984-86 also proved the factum of utilization of the land. Jamabandis prior thereto and khasra girdawari showing the entries in the name of Piare was thus, meaningless.
As an upshot of my findings, I do not find any illegality and perversity in the judgment and decree of the Lower Appellate Court being the last Court of facts and law which are based upon the appreciation of oral and documentary evidence, much less no substantial question of law arises for adjudication of the present appeal.
No other argument has been raised.
Resultantly, the appeal stands dismissed.
(AMIT RAWAL)
JUDGE
February 20, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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