Punjab-Haryana High Court
State Of Punjab vs Krishan Lal on 15 October, 1999
Equivalent citations: (2000)125PLR101
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. State of Punjab has fled the present Regular Second Appeal against Shri Krishan Lal son of Shri Ram Lal and it has been directed against the judgment and decree dated 3.10.1979, passed by the Court of District Judge, Patiala, who set aside the judgment and decree dated 15.5.19.79, passed by the Sub Judge, 2nd Class, Patiala who dismissed the suit of Shri Krishan Lal for declaration and injunction as prayed for.
2. The pleadings of the parties can be summarised in the following manner. Shri Krishan Lal son of Shri Ram Lal, filed a suit for declaration that he is the owner of the house and shop with chaubara, as described in the heading of the plaint and situated at Amloh and that these are not liable to be attached and sold in case of recovery by the Excise Department from the father of the plaintiff, and for permanent injunction for restraining the defendants from attaching or selling the aforesaid property or interfering in the ownership and possession of the plaintiff.
3. The case set up by the plaintiff was that he is the owner and in possession of the suit property under a registered gift deed dated 4.11.1968 executed in his favour by his father Shri Ram Lal. In this manner, Shri Ram Lal had no right, title or interest in the said property since 4.11.1968. According to the plaintiff, his father Shri Ram Lal allegedly took some excise contracts at Nabha and some amount was said to be due to the Department from him and that his father was a defaulter. The Deputy Excise and Taxation Commissioner, Patiala, ordered for the realisation of the amount due on account of the excise dues from his father and he Was attaching and selling the property for the recovery of the excise dues. This action on the part Of the defendant No.2 was illegal, void and without jurisdiction. The plaintiff on coming to know that the house is going to be attached' and sold in execution of the recovery, made a prayer to defendant No.2 not to attach and sell the. property but to no effect. In Short, the plaintiff alleged that defendants have no right to attach and sell the said house and as such, the suit should be decreed.
4. Notice of the suit was given to the defendants who filed the written statement and denied the allegations. According to the defendants, Ram Lal, father of the plaintiff, was a defaulter in the payment of the licence fee of the country liquor .vends which he purchased during the year 1968-69 and he defaulted in the payment of the licence fee totaling Rs. 6,54,998/-. This amount who to be declared as arrears of land revenue under the Punjab Land Revenue Act, 1887. Ram Lal transferred the house in the name of his son Krishan Lal through gift deed in order to avoid the payment of the excise, department and as such, the transfer of the house is to be ignored under Section 53 of the Transfer if Property Act. The defendants also took the stand that the suit of the plaintiff is not maintainable in the civil Court and that the suit is also collusive between him and his father Shri Ram Lal.
From the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiff is owner and in possession of the disputed house? OPP
2. If issue No.1 is proved, whether the house is dispute is liable to be attached and sold in lieu of recovery of Excise Licence Fees due from Ram Lal father of the plaintiff? OPP
3. Whether the civil Court has no jurisdiction to try this suit as the recovery is being effected as an arrears of land revenue?
4. Whether the suit is not maintainable? OPD
5. Whether the suit is barred by limitation? OPD
6. Whether a notice under Section 80 C.P.C. was served upon the defendants? OPD
7. Whether the gift dated 4.11.1968 is the result of fraud with the State? OPD
8. Relief.
The parties led oral and documentary evidence in support of their case and on the concluion of the proceedings, the trial Court held under issue No.1 that the plaintiff has not become the owner of the disputed house. Under issue No.2, it was held that the house in dispute is liable to be attached and sold in lieu of the recovery of the excise licence fee due from Shri Ram Lal. Issue No.3 was also decided against the plaintiff. Issue No.5, however, was decided in favour of the plaintiff. The trial Court even decided issue No.6 against the plaintiff. Issue No.7 was also decided against the plaintiff as a result of which he suit was dismissed for the reasons given in para Nos.7 to 14 of the judgment and decree dated 15.5.1979, passed by the trial Court, which are reproduced as under :-
"7. The plaintiff has produced registered gift deed dated 4.11.1968, Ex.P.1, executed by Ram Lal donor, in favour of Krishan Lal, donor, He has further brought on record site plan of the house, which is Ex.P.2, gift deed Ex.P.1 has been proved by Nathu Lal petition writer PW2 who scribed it and entered in his register at Sr.1751. Pushap Lal PW-3 was the attesting witness of the gift deed. A copy of the assessment Register Ex.P.5 further establishes, ownership and possession of shop in dispute. The learned counsel for the plaintiff has argued that on the basis of oral and documentary . evidence, plaintiff has proved his ownership and possession in the suit property. The State has taken defence that Ram Lal father of the plaintiff wrongly registered the gift deed by means of a fraud with the State. So much so, he had full interest in the property as and when he got licence in auction, he was the full owner of the property on 1.4.1968. The law is clear on the point that father cannot make a gift of the coparcenary property, to his minor son. If he does so that gift is void The plaintiff in this case has not proved that it was not a coparcenary property, instead it was self-acquired. Thus, the gift to his minor son of 13 years is void. The ownership and possession of the property remained with the father till his death. DW4 has proved that Ram Lal had been paying property tax for the period from 1.4.1968 to 31.3.1970. Thus, the plaintiff failed to prove, that he was owner in possession. The issue is decided accordingly.
Issues No.2 and 7.
The onus to prove these issues was placed on the defendant State. Shri Sukhdev Singh E.T.O. D.W.2 has stated that on 25.3.1968, he was posted as Excise Inspector in District Patiala. He was present, when liquor vends of Patiala were auctioned. As per bid statements dated 25.3.1968, Exs.D.1, D.2 and D.3, country liquor shops were sold in favour of Ram Lal and others for the year 1968-69. These bid statements were signed by Sh. K.G. Graver, Deputy Excise and Taxation Commissioner, Ram Lal, Sham Lal and Hukam Chand, in whose favour country liquor vend shops were auctioned signed in his presence on Exs.D.1, D.2 and D.3. They started their shops w.e.f. 1.4.1968. They committed default from the beginning of the year i.e. from 4/68. Consequently, Rs. 6,54,998/- became due towards them at the end of the year i.e. on 31.3.1969. Recovery of arrears was to be effected as land revenue as per procedure Laid down in Section 67 of the Land Revenue Act. Section 67, inter alia states that an arrears of land revenue may be recovered by any one or more of the processes, namely:-
(a) by service of writ of demand on the defaulter;
(b) by arrest and detention of his person;
(c) by distress and sale of his moveable property and uncut or ungathered crops;
(d) by transfer of the holding in respect of which the arrears is due;
(e) by attachment of the estate or holding in respect of which the arrears is due;
(f) by annulment of the assessment of that estate or holding;
(g) by sale of that estate or holding;
(h) by proceedings against other immovable property of the defaulter.
Sh. Sukhdev Singh DW2, has stated that a writ of demand was served upon Ram Lal defaulter, on 15.7.1969. Thereafter, house No.696, in ward No.4 and shop No.15 in ward No.1 were attached on 17.11.1975, by the Deputy. Excise and Taxation Commissioner. The orders were complied with on 31.12.1975.
9. The learned Government Pleader for the State has argued that on 25.3.1968 when the country liquor shop was sold in favour of Ram Lal, father of the plaintiff, was owner in possession of the property in question. He made default from the month of April, 1968. He further argued that Ram Lal, defaulter, cleverly and fraudulently made a gift of the property in favour of his son Krishan Lal, while he was 13 years old and studying in 7th class, in order to save his property from attachment. Moreover, the possession remained with the donor even after the property was gifted. Gurdip Singh, Inspector M.C. Amloh, DW4 has proved that disputed property stands to the name, of Ram Lal, in property Register for, the period from 1.4.1968 to 31.3.1970 as per entries at Sr. No.595 and No.600 respectively. The learned G.P. further contended that house in dispute is liable to be attached and sold in lieu of recovery of Excise licence fee.
10. The plaintiffs father has played a fraud with the State by gifting his property in favour of his son, Krishan Lal on 4.11.1968, white he was in arrears of Excise Revenue. The recital of the gift deed Ex.P.1 states that his son Krishan Lal rendered good service to him, as such he gifted the property in his favour. Plaintiff has admitted in cross-examination that he was 13 years old and studying in 7th class while gift deed was executed. it could not be expected from a minor son to render Service of his father. The gift in fact was against the society and only to avoid attachment and sale of property in lieu of recovery of Excise Licence Fees. In the circumstances, both the issues are decided in favour of the defendants.
Issue No. 311. The remedy is open to person denying his liability for an arrears of land revenue as has been described in section 78 of the Land Revenue Act. The Section runs as under:-
"1. Notwithstanding anything in section 66 when proceedings are taken under his Act for the recovery of an arrears, the person against whom the proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a civil court for the recovery of the amount so paid.
2. A suit under Sub-section (1) must be instituted in a court having jurisdiction in the place where the office of the Collector of the district in which the arrear or some part thereof accrued is Situate".
The plaintiff has not paid the outstanding amount which was due from his father, and has fifed this suit for making the payments as such the civil court has no jurisdiction. The 1eaned Government Pleader has placed his reliance in the case of Punjab State v. Kirpal Singh, 1978 P.L.J. 109, it was held by their Lordships that person who denied his liability for payment of arrear cannot simply sue for obtaining injunction against State, that it should be restrained from making any recovery and in such cases where the incumbent makes payment under protest and then institutes suits for recovery of amount paid. In the instant case, the plaintiff has filed suit against the defendant for not effecting the recovery of licence fee outstanding against his father which is to be recovered as land revenue without paying the same as such the civil Court has no jurisdiction. So much' so the son is liable to meet debt of his father. The property in question was cleverly and mischievously gifted by Ram Lal, father of the plaintiff to evade effecting of recovery by Excise Department by attaching and selling the property. The issue is decided in favour of the defendants and against the plaintiff.
Issue No. 412. The learned Government Pleader for the State came forward to argue that the suit is not maintainable in the present form as the recovery is to be effected as land revenue. Ram Lal, father of the plaintiff signed bid statements Exs.D.1, D.2 and D.3 dated 25.3.1968. He had been paying house tax of the property even after the execution of gift deed. The property was belonging to Ram Lal and gift was void as such the suit in the present form was not maintainable. The issue is decided in favour of the defendants and against the plaintiff.
Issue No.5.
13. The learned Government Pleader has, argued that the gift deed was executed on 4.11.1968 as such the plaintiff was entitled to file the suit within three year Rs. On the other hand, the learned Counsel for the plaintiff has contended that the suit was filed on 28.8.1976 when the defendant decided to attach and sell the property in question. The plaintiff has filed suit for declaration as such he could file suit within 12 yeas from the date of clause of action arose. The cause of action arose, on 14.6.1976 as such the suit is within limitation. This issue is decided in favour of the plaintiff and against the defendants.
Issue No. 6.
14. The onus to prove this issue was placed on the plaintiff. In support of the issue, the learned Counsel for the plaintiff has argued that notice was given to defendant Nos. 1 and 2 on 7.6.1976 under postal receipt. Notice is Ex.P.3 and postal certificate Ex.P.4. The learned Counsel for the plaintiff placed his reliance in the case of Smt. Hemangine Dassee v. Sh. Sarnala Tikka Dassee, A.I.R. 1940 Cal. 227, wherein his Lordship held that where a certificate of posting is put in evidence, the presumption is that the letter was posted and that it reached its destination unless something is shown to the contrary he further referred another case Dineshwar Prasad Singh v. Smt. Manorama Devi, A.I.R. 1978 Patna 256, their Lordships held that where a letter sent under postal certificate of posting, it has to be presumed that it has been delivered to the addressee. He further referred a case Butto Kiristo Roy and OrRs. v. Gobinda Ram Marwarim and OrRs. , A.I.R. 1939 Patna 540 wherein it was held that letter posted and not received back to that letter office shall be presumed to have been received by the addresses. In the light of the above pronouncement the learned Counsel for the plaintiff stressed that a notice Ex.P.3 was sent on 7.6.1976 under postal certificate Ex.P.4 which was not received back undelivered as such it should be presumed to have been delivered.
14. On the other hand, learned Government Pleader for the State vehemently argued that notice was given at Govindgarh whereas the defendants has been residing at Amloh. So much so, it was not sent under registered cover, The defendant State examined Surinder Pal Singh DW1, who clearly deposed that no such notice was received by him. Moreover, it does not show its entry in the Diary Register. The plaintiff has not succeeded to prove that the notice reached to the defendants as the posting of notice under postal certificate simply confirms that it was posted, but it does not further emphasis that it was delivered to the defendant. The above pronouncements were helpful to the plaintiff, in case entry into the Diary Register was produced. The issue, is therefore, decided in favour of the defendant and against the plaintiff"
Aggrieved by the judgment and decree of the trial Court, plaintiff Krishan Lal filed the first appeal before the Court of District Judge, Patiala, who for the reasons given in para Nos.7, 8, 9 and 10 of the impugned judgment reversed the judgment and decree of the trial Court and decreed the suit of the plaintiff and aggrieved by the judgment and decreed dated 3.10.1979, passed by the Court of District Judge, Patiala, the present. Regular Second Appeal has been filed by the State of Punjab.
5. Before I deal with the submissions raised by the counsel for the appellants, it will be appropriate for me to incorporate para Nos.7, 8, 9 and 10 of the judgment of the first appellant Court:-
"Issue No.6.- According to the plaintiff notice copy Ex.P.3 was sent to the Collector through postal certificate Ex.P.4. It is not suggested that the postal certificate was forged one. In the normal course of events the notice must have reached the defendant. Even otherwise it has been Lald down in a good number, of authorities that whenever the State deals with a citizen it should act honestly and should not rest on technicalities. I hold that the notice Ex.P.3 must have reached the defendant. No objection regarding in validity of the notice Ex.P.3 was taken before me. I reverse the finding of the trial Court on this issue and hold that a valid notice under Section 80 C.P.C. was served on the defendants.
8. Issues No. I to 4 and 7. All these issues being connected are discussed at one place. The admitted facts of the' case are Ram Lal father of the plaintiff along with others took an excise contract somewhere in the month of April, 1968. Ram Lal gifted the house in question to the plaintiff on 4.11.1968 through gift deed Ex.P.1. The case of the plaintiff is that he is in possession of the house. The trial Court tried to find fault with the gift on the ground that the possession did not change hands. In Baba Partap Singh v. Fatta and OrRs. , (1998-3)120 P.L.R. 1906 it was observed as under:-
"That the Divisional Judge failed to observe the distinction between the importance on the question of delivery of possession in a contest between the donor and donee and the insignificance of the same question when the donee is fighting with a third person and is supported by the donor".
To the similar effect are the observations in Mst. Bano v. Fatech Khan and Anr., (1995-3)111 P.L.R. 1903 (F.B.). Support for the aforesaid view is available from the observations in Rahim Bakhsh Khan and Anr. v. Gulam Babi Khan and OrRs. , 61 Indian Cases 395. The trial Court tried to pick hole in the case on the ground that the same belonged to coparcenary. No such plea was taken in the written statement and in the absence of a plea the trial Court went wrong in holding so The privy Council in Sadiq v. Saran, A.I.R. 1930 P.C. 47 observed that no amount of evidence will be looked upon a plea which was never put forward.
9. It is not the case of the defendant that the house in question was the only property of Ram Lal. The contract was with Ram Lal and others, The liability of all of them was joint and several. It has not been clearly shown as to what was the liability of Ram Lal on 4.11.1968. the written statement of the defendant contains no clear particulars of the fraud as contemplated by Order 6 Rule 4 C.P.C. I hold that the plaintifff-appellant has become owner of the house in question through gift deed Ex.P.1, that the same was not liable to attachment and sale, that the suit was maintainable and that the gift deed was not fraudulent.
10. The suit by the plaintiff was that the house in question was not liable to attachment and sale and as such the same was clearly within the purview of the Civil Court. The findings of th6 trial Court on these issues are reversed"
I have heard MrRs. S.K. Bhatia, learned counsel for the appellant and Shri O.P. Hoshiarpuri, learned Counsel for the respondent and with their assistance have gone though the record of the case.
The learned counsel for the appellant submitted that the judgment of the first appellate Court is liable to be set aside and that of the trial Court is liable to be restored and the suit of the plaintiff should be dismissed. She found fault in the judgment and decree of the first appellate Court and her first submission was that it is proved on the record that Shri Ram Lal, was a defaulter as on 4.11.1968 and that the State of Punjab was a creditor and the gift deed has been executed by Shri Ram Lal in favour of Shri Krishan Lal, his son, in order to defeat and delay the creditors and the said gift is hit by the principles of Section 53 of the Transfer of property Act. 1 find sufficient force in the argument raised by the learned Counsel for the appellants. Section 53 of the Transfer of Property Act lays down that every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated, delayed. It further lays down that nothing in this Section shall impair the rights of a transferee in good faith and for consideration. Now it is to be seen whether the gift deed allegedly executed by Shri Ram Lal in favour of his son Shri Krishan Lal was with intention to defeat and delay the creditors i.e. the Punjab State or not. It is proved on the record through the statement of Sukhdev Singh DW2 that Shri Ram Lal and others took three country (liquor) vends during the year 1968-69. Under the conditions and rules Ram Lal and others were liable to deposit every fortnightly the instalment of the licence fee and in April 1968 Ram Lal made a default of the excise conditions and this accrued up to 31.3.1968 and the total amount due to the Department was Rs. 6,54,998/- This witness further deposed that Ram Lal made payment of one or two instalments in the month of April 1968 and thereafter, he started committing, defaults and as such the Department was compelled to initiate, the proceedings against Ram Lal and others for the recovery of the amount. It is the case of the plaintiff made in the plaint that he came to know that the Excise Department had started the proceedings against his father for the realisation of the some amount. In these circumstances, it can be reasonably said that the State was a creditor and Shri Ram Lal was a defaulter. The auction was Conducted on 25.3.1968. The present gift deed Ex.P.1 has been executed on 4.11.1968. There was no such occasion why Shri Ram Lal had divested himself of his entire property in favour of his sons. There is also no proof mat the said gift was ever accepted by Shri Krishan Lal or on his behalf. Further in the record of the income-tax Department, name of Shri Ram Lal figures and also it is not clear from the evidence that the possession of the gifted property was ever given to Shri Krishan Lal. In these circumstances, it can be reasonably inferred that the gift deed dated 4.11.1968 was nothing but a fraudulent act which was with the intention to defeat and delay the creditorRs. The counsel for the respondent submitted that the demand in this case was issued for the first on 15.7.1969 and the attachment was effected in the year 1975. On 4.11.1968 Shri Ram Lal was not defaulter and plaintiff is a bona fide transferee and, therefore, the gift deed should be held to be valid.
6. I do not subscribe to the arguments raised by the learned counsel for the respondent. As I Have already elaborated above that Shri Ram Lal became a defaulter right in the month of April 1968 when he did not deposit the instalment of the amount. Fully realising that he will not be in a position to discharge his liability under the contract, he executed the gift deed dated 4.11.1968 one in favour of the present plaintiff and the other in favour of Shri Tarlochan Lal who also filed a similar suit and whose suit was dismissed by the trial Court and was decreed by the first appellate Court and vide my judgment of even date. I am accepting the appeal of the State vis-a-vis Shri Tarlochan Lal also.
7. The fraud cannot be proved by direct evidence. It has to be inferred by circumstances. The defendant has specifically taken the stand that the gift deed dated 4.11.1968 was with intention to defeat and delay the creditor and all those circumstances have been proved on the record from which it can be safely concluded that the gift deed is hit by the principles of Section 53 of the Transfer of Property Act. It has been held in A.I.R. 1961 Punjab 361, Bachan Singh v. Banarsi Dass, that "however suspicious a transaction, the Court's decision must always be based on legal grounds, legally brought on the record, and it must never rest on suspicions or on the Court's mere moral convictions. The burden of successfully assailing a transaction initially lies on the creditorRs. When the creditors have established facts, which show the prima facie intention of the debtor to defeat or delay the creditors, it is then for the debtor to meet the case made put and to explain the facts. According to general law, a man is presumed to intend the natural consequences of his acts, and that, fraud, from its very nature, has necessarily to be established by circumstantial evidence. The facts which militate against the bona fides of a transaction and whose cumulative effect establishes fraud, are many and varied. Unexplained secrecy is by and large, considered to be a badge of fraud, whereas notoriety might well rebut a presumption of fraud. Though all facts are to be considered cumulatively, yet the facts that the debtor is in embarrassed circumstances proceedings for attachment of his property having been initiated and the transaction is between close relations, who are otherwise not shown to be inimical to each other, may constitute good prima facie evidence of fraudulent intention; this would be still more so, when the entire property has been transferred by the debtor and no reliable evidence of the bona fides of the transferee has been placed on the record. The subsequent conduct of the vendee in not taking necessary steps for getting the requisite mutations entered in the revenue papers, is also not wholly Unimportant in determining the fraudulent intent and the existence of collusion between the parties. A transaction, which does, in fact, result in defeating and delaying the existing creditors may legitimately be presumed to have been made with the intention of causing the above consequence, and this rule would perhaps be equally applicable even when there is only a single creditor of the debtor and he has been so defeated and delayed."
8. The above observations would show that the said gift deed is between the two relations. It is also established on the record that Shri Ram Lal was a defaulter and he started committing defaults right from April, 1968 onwards fully realising that he and his co-partners may not in a position to clear the dues of the Department In A.I.R. 1971 Punjab and Haryana 325, Smt. Shallo Devi and Anr. v. Mohinder Singh and OrRs. , , it was held that a creditor can exercise his option to avoid a fraudulent transfer by attaching the transferred property in execution of his decree and it is not necessary that he should file a regular suit. In the present case, with the filing of the written statement it self, the State has challenged the gift deed in favour of the plaintiff. Even if it is assumed for the sake of argument that Krishan Lal had a pre-existing interest in the property gifted in his favour and that the property was ancestral one, still his property can be sold in his hands as the son is liable to the pre-partition debts of his father even after partition under the theory of pious obligation if those debts are not immoral or illegal and for payment of which no arrangement was made in the partition. The case of the plaintiff is simple that he received this property though gift.
9. Now let us see whether the gift In this case has been held to be proved. Section 122 of the Transfer of Property Act defines gift. The gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving the same.
10. Thus, delivery of possession of the property gifted and its acceptance are the two essential ingredients before it can be said that a gift is valid. Admittedly, Krishan Lal was a minor. He is not aware whether the possession of the house was also delivered to him or not of whether the possession was accepted on his behalf or not.
11. There is no more vision of reason, through which, the present appeal can be disposed of. Section, 3 sub-clause 8 of the Punjab Land Revenue Act defines a defaulter which means a person liable for the arrear of the land revenue and includes a person who is responsible as surety for the payment of the arrears; and a village officer who collects the land revenue or any other sum recoverable as land, revenue and does not pay the same to the State Government in accordance with the rules framed under the Act. The licence fee under the Excise Act is payable as arrears of land revenue. In these circumstances, it can be again reasonably held that Shri Ram Lal was a defaulter. As per Section 67 of the said Act, which talks of process for recovery of arrear, the arrears of land revenue can be recovered by proceeding against the other immovable property .of the defaulter.
12. I have already held that no valid title has passed in favour of Krishan Lal on ac-count of the fraudulent transfer, Section 72 of the Punjab Land Revenue Act further lays down how the attachment of the estate can be: effected. According to the Section at any time after an arrears of land revenue has accrued, the Collector may cause the estate or holding in respect of which the arrears is due to be attached and taken under his own management or that or an agent appointed by him for that purpose. Section 78 pre-scribes the remedies open to a person denying his liability for an arrear and according to this Section, when proceedings are taken under this Act for the recovery of an arrear, the person against whom the proceedings are taken may, if he denies his liability for the arrears or any part thereof, and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a Civil Court for the recovery of the amount so paid. Meaning thereby that it was obligatory on the part of the plaintiff to deposit at the first instance the amount of the demand made by the Department and then he could challenge the demand by way of separate suit. Admittedly, neither the plaintiff nor his father deposited the said amount. Section 158 of the Punjab Land Revenue Act Sub-clause (xiv) lays down that a Civil Court shall not exercise jurisdiction over any of the matters namely, any claim connected with or arising out of, the collection by the Government, of any process for the recovery of land revenue, or any sum recoverable as an arrears of land revenue. This Section, thus, again bars the suit of the plaintiff to be instituted in the Civil Court. In this regard, reliance can be placed on A.I.R. 1983 Punjab and Haryana 428, Roshan Lal v. State of Punjab, wherein his Lordship held that if the plaintiff filed a suit for injunction challenging the action of the State as being without jurisdiction, certainly, the Civil Court has the jurisdiction to entertain the suit. However, the question of jurisdiction of the Civil Court will depend only after the facts are found. If it is found that the whole amount is due then the jurisdiction of the civil Court to grant relief would be ousted. It is established on the record that a sum of Rs. 6,54,998/- was due to the State from Shri Ram Lal and his co-partners on account of the excise licence money. Shri Ram Lal was not in a position to pay the amount and so he started transferring his property in favour of his sons in order to defeat the claim! The case set up by the plaintiff that he is not liable for the payment of the arrearRs. It has been held in (1978)80 P.L.R. 109, Punjab State v. Kirpal Singh that if a person denies his liability for the payment of the arrears, such person cannot sue for obtaining injunction against the State. Such a person should make the payment under protest and then file the suit for the recovery, Admittedly, the plaintiff has not deposited the money and, therefore, his suit was not legally maintainable.
13. Inspite of the proved facts, the learned first appellate Court decreed the suit of the plaintiff for the reasons which are not tenable. There was clear and cogent evidence on the record that Shri Ram Lal was in liability much prior to 4.11.1968. His liability started from the very beginning he committed default in the payment of the licence fee. He could only make one or two payments. The first appellate Court has not rightly appreciated the evidence. Faced with this difficulty, the learned counsel for the respondent relied upon A.I.R. 1998 Kerala 139, Chumar v.
Alima. In my view this cited judgment is not applicable to the facts of the case in hand. It is established on record that Shri Ram Lal gifted the property in favour of his sons Krishan Lal and Tarlochan Lal in order to defraud the Government.
14. In this View of the matter, I am of the considered opinion that the first appellate Court committed an error in setting aside the judgment and decree of the trial Court. Resultantly, I allow this appeal; set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court and dismiss the suit of the plaintiff-respondent with no order as to costs.