Punjab-Haryana High Court
Prem Nath & Others vs State Of Haryana & Another on 3 October, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP NO.8256 OF 1987
DATE OF DECISION : 3rd OCTOBER 2013
Prem Nath & others
.... Petitioners
Versus
State of Haryana & another
.... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Ashish Aggarwal, Senior Advocate with
Mr. Kulwant Singh, Advocate for the petitioners.
Mr. Deepak Girotra, Assistant Advocate General, Haryana for
respondents.
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L. N. MITTAL, J. (ORAL)
By this common judgment, I am disposing of two cases i.e. CWP No.8256 of 1987 titled Prem Nath & others versus State of Haryana and another and RSA No.1973 of 2009 titled Anil Kumar & others versus State of Haryana and another because common questions of law and facts are involved therein.
36 standard acres 1 ½ units land was allotted allegedly to Mandir Lachhman Chontra (religious institution) through Hukam Dass under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short, the 'Act') in lieu of land left in Pakistan. However, P. rights CWP No.8256 of 1987 -2- (proprietary rights) of the land were alleged to be illegally obtained in favour of Hukam Dass in connivance with Government officials. On the death of Hukam Dass in the year 1950, his brother Om Parkash inherited the said land by way of inheritance mutation. Thereafter, Om Parkash sold substantial part of the said land. Writ petitioners herein also purchased some land out of said land from Om Parkash vide various sale deeds from the year 1968 till the year 1977.
Ramesh Chander son of Hukam Dass made complaint (apparently in the year 1978) that his father Hukam Dass had gifted the land in question in Pakistan to the aforesaid religious institution vide mutation no.610 dated 08.05.1943 and therefore allotment of the disputed land in India had to be made to the religious institution through Hukam Dass and not to Hukam Dass in his individual capacity. Assistant Registrar-cum-Managing Officer, Rehabilitation Department, Haryana accordingly made reference dated 24.07.1978 (Annexure P-1) to Chief Settlement Commissioner (CSC)-respondent no.2 for setting aside the P. rights of the aforesaid land allotted in the name of aforesaid Mandir through Hukam Dass. Thereupon respondent no.2-CSC vide order dated 18.03.1981 (Annexure P- 2) set aside the P. rights of the aforesaid entire land measuring 36 standard acres 1 ½ units allotted in the name of aforesaid Mandir under management of Hukam Dass. However, since the petitioners as purchasers of the land by them had paid substantial amount to the allottee of the land, CSC allowed the petitioners to purchase the said land on reserve price if they so desired. Revision petition preferred by Om CWP No.8256 of 1987 -3- Parkash allottee against order (Annexure P- 2) passed by CSC has been dismissed vide order dated 06.05.1987 (Annexure P-3) by Financial Commissioner and Secretary to Government of Haryana, Rehabilitation Department-respondent no.1 (in short, 'FC') exercising the powers of Central Government under Section 33 of the Act. Prem Nath etc. have filed CWP No.8256 of 1987 for quashing of order (Annexure P- 2) passed by CSC and order (Annexure P- 3) passed by FC. The petitioners have alleged that the land in question was individual land of Hukam Dass and not of the religious institution. It was also alleged that petitioners are bonafide purchasers of the land for valuable consideration and are, therefore, protected. It was also pleaded that the allotment of the land could not be cancelled under Section 24 of the Act after three decades.
Respondents in their written statement while admitting the factual position have denied the claim of the petitioners. It was alleged that since title of petitioners' vendor Om Parkash allottee was defective, the petitioners cannot derive valid title to the land purchased by them from Om Parkash, who himself did not have valid title. It was also alleged that land left in Pakistan was of the religious institution having been gifted to it by Hukam Dasss vide mutation no.610 dated 08.05.1943 and, therefore, conferment of P. rights of the land in question on Hukam Dass in individual capacity has been rightly set aside by impugned orders (Annexures P-2 and P-3).
Coming to facts of RSA No.1973 of 2009, the said second appeal has been filed by plaintiffs Sanjeev Kumar and two others who were CWP No.8256 of 1987 -4- successful in the trial Court but have been non-suited by the lower Appellate Court. Case of the plaintiffs is that Om Parkash allottee suffered decree dated 02.11.1989 regarding the suit land in favour of his nephew Naresh Dass son of Hukam Dass and mutation no. 790 thereof was also entered. Plaintiffs have purchased 1/3rd share each in 198 kanals 12 marlas land from Naresh Dass through three separate sale deeds all dated 16.07.1991 and since then they are owners in possession of the suit land which is now measuring 194 kanals 8 marlas. Mutation nos.824 to 826 were also sanctioned in their favour on the basis of the said sale deeds. Plaintiffs claimed to be bonafide purchasers of the suit land. However, defendants-State of Haryana and Assistant Collector threatened to cancel the aforesaid mutations in favour of the plaintiffs. Accordingly plaintiffs sought declaration that they are bonafide purchasers (owners in possession) of the suit land on the basis of aforesaid sale deeds and consequent mutations, which are not liable to be cancelled. Plaintiffs also sought permanent injunction restraining the defendants from cancelling the aforesaid mutations no. 824 to 826 and from dispossessing the plaintiffs from the suit land.
Defendants in their written statement set up the cancellation order dated 18.03.1981 passed by CSC and affirmed by FC vide order dated 06.05.1987. It was thus pleaded that plaintiffs' vendor had defective title and, therefore, plaintiffs have also not derived valid title to the suit land. It was also pleaded that plaintiffs having purchased the suit land long CWP No.8256 of 1987 -5- after passing of the cancellation order, cannot be said to be bonafide purchasers of the suit land.
Learned trial Court vide judgment and decree dated 29.01.2008 decreed the plaintiffs' suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge vide judgment and decree dated 11.04.2009 and thereby suit filed by the plaintiffs stands dismissed, but defendants have been restrained from dispossessing the plaintiffs forcibly and illegally from the suit land except in due course of law. Feeling aggrieved, plaintiffs have filed the second appeal.
I have heard counsel for the parties and perused the case files including files of the Courts below with their assistance.
Counsel for the parties reiterated their respective versions as noticed hereinabove. Following substantial question of law arises for adjudication in the regular second appeal:
Whether finding of the lower Appellate Court that plaintiffs are not bonafide purchasers of the suit land, is perverse and illegal and is based on misreading and misappreciation of the evidence and the law ?
Facts in the cases are not very much in dispute. Allotment of land in question was made either to religious institution or to Hukam Dass (this fact is not clear from the material on record). However, P. rights in the said land were admittedly conferred on Hukam Dass in his individual capacity. Hukam Dass died in the year 1950. It depicts that the P. rights CWP No.8256 of 1987 -6- were conferred on him in the year 1950 or prior to it. However, the said P. rights conferred on Hukam Dass and his successor brother Om Parkash were set aside by CSC vide order dated 18.03.1981 (Annexure P- 2). The said cancellation was made more than three decades after the allotment. CSC could not have exercised power under Section 24 of the Act after lapse of such long period of more than three decades. In this view, I am supported by various judgments cited by counsel for the petitioners and appellants (vendees). In the case of Loku Ram versus State of Haryana, 2000(1) RCR (Civil) 141, similar provision of revisional power under Section 18(6) of the Haryana Ceiling on Land Holdings Act, 1972 was interpreted by Hon'ble Supreme Court. It was held that such powers have to be exercised within reasonable time. It would be unreasonable to hold that Financial Commissioner has unlimited power to entertain revision petition after lapse of several years. In that case, revisional power was exercised after seven years. Still order of FC was set aside because the power was not exercised within reasonable period. This Court in unreported judgment dated 11.07.2011 in CWP No.7074 of 1991 titled Smt. Dayawanti & others versus The State of Haryana and others also dealt with the same provision and held that revisional power cannot be exercised after long delay without explaining the delay. This Court in the case of Suba Ram (deceased) through his LRs and others versus The State of Haryana and others, 2012(1) PLR 374, dealt with the revisional power of CSC under Section 24 of the Act. In that case, the said power was exercised after two decades. It was held that there was no justification CWP No.8256 of 1987 -7- for the State to reopen the issue after such a long period. Impugned order of CSC was, therefore, set aside. Similarly Division Bench of this Court in the case of Karam Chand versus Union of India and another, 1967 AIR (Punjab) 85, set aside the order passed by CSC under Section 24 of the Act when the power was exercised after several years. In the instant case, the vendees (petitioners and appellants) are on a better footing because the power has been exercised by CSC under Section 24 of the Act after more than three decades of the allotment. Consequently, cancellation of allotment and P. rights by CSC vide order (Annexure P- 2) as upheld by FC vide order (Annexure P-3) is patently illegal and unsustainable.
It may also be added that according to respondents' version also, the land had been gifted by Hukam Dass to the religious institution vide mutation no.610 dated 08.05.1943 and, therefore, the land in question had to be allotted to the said religious institution and not to Hukam Dass. Even if it be so, the allotment of the land could not be cancelled outrightly and could at best be reverted to the religious institution. In other words, respondents or Custodian General or Central Government would not have derived any right in the disputed land even in the said scenario.
In addition to the aforesaid, petitioners in the writ petition are bonafide purchasers of the land purchased by them from Om Parkash allotted since 1968 till 1977. As noticed hereinbefore, P. rights in the land had been conferred to Hukam Das in or before the year 1950. On his death in the year 1950, the land was inherited by his brother Om Parkash and necessary entry in the revenue record was made in his favour. The CWP No.8256 of 1987 -8- petitioners purchased the land from Om Parkash almost two decades thereafter. During this long period of two decades, Om Parkash was recorded to be owner in possession of the land in question. At that time, his title also could not be said to be defective because the cancellation orders (Annexure P- 2 and P-3) came to be passed much later. Consequently, the petitioners, while purchasing the land from Om Parkash, since the year 1968 till the year 1977, were acting in good faith and are bonafide purchasers of the land in question for valuable consideration. Even the CSC found the writ petitioners to be purchasers for valuable consideration and therefore, allowed them to purchase the land again on reserve price. However, CSC disallowed the claim of the writ petitioners as bonafide purchasers of the land on the ground that title of their vendor Om Parkash was defective. However, the question of protection as bonafide purchasers under Section 41 of the Transfer of Property Act, 1882 (in short, the 'TP Act') arises only when the title of the vendor is defective. If the title of the vendor is good, then the question of claiming protection as bonafide purchaser would not arise because the title would otherwise validly pass to the vendee. In the instant case, the writ petitioners fulfilled all conditions of Section 41 of the TP Act. They purchased the land from Om Parkash who was reflected to be owner in possession of the land in the revenue record for two decades before the petitioners purchased the land from him. There was also no material or circumstance to suspect the title of the petitioners' vendor Om Parkash at that time. Consequently, writ petitioners are certainly bonafide purchasers of the land purchased by them CWP No.8256 of 1987 -9- from Om Parkash. For this reason also, the writ petition has to be allowed. In this view, I am supported by direct unreported Division Bench judgment of this Court dated 14.01.1986 in LPA no.98 of 1982 titled The State of Haryana & others versus Smt. Savitri Devi & others. In that case also, the writ petitioners had purchased land from the allottee but the allotment of land in favour of allottee vendor was subsequently cancelled. The vendees were held to be bonafide purchasers and, therefore, owners thereof. This judgment is directly applicable to the facts of the case in hand.
Now coming to RSA No.1973 of 2009. Contention of counsel for respondents that appellants having purchased the suit land long after cancellation of allotment thereof, cannot be said to be bonafide purchasers thereof, is attractive on the face of it but on proper scrutiny, the contention cannot be accepted in the facts and circumstances of the instant case. Perusal of trial Court file reveals that Om Parkash continued to be reflected as owner in possession of the suit land in the revenue record till he suffered decree dated 02.11.1989 in favour of his nephew Naresh Dass. In this context, jamabandi for the year 1985-86 has been produced in evidence depicting Om Parkash to be owner of the suit land. In fact, there is no dispute about it. The same entries continued even thereafter. Pursuant to decree dated 02.11.1989 suffered by Om Parkash, the suit land was mutated in favour of Naresh Dass vide mutation No.790 sacntioned on 29.11.1989. Thereafter appellants/plaintiffs purchased the suit land from Naresh Dass vide sale deeds dated 16.07.1991. Thus prior to purchase by the plaintiffs, the suit land was continuously reflected in the ownership of CWP No.8256 of 1987 -10- their vemdor Naresh Dass and his predecessor Om Parkash for forty years since after allotment thereof to Hukam Dass and inherited by Om Parkash in or about the year 1950. The plaintiffs while purchasing the suit land could not have imagined even in their wildest dreams that the said allotment had been cancelled vide orders dated 18.03.1981 and 06.05.1987 passed by CSC and FC respectively. There was no occasion for the plaintiffs to have come to know of the said cancellation orders. The plaintiffs could not have imagined existence of the said orders under any circumstances, keeping in view the consistent entries in the revenue record in favour of their vendor and his predecessor. Plaintiffs were not aware of the cancellation orders even till filing of the suit. Consequently, the plaintiffs are also bonafide purchasers of the suit land for valuable consideration.
In the aforesaid context, it is significant to notice that the respondents after passing of cancellation order dated 18.03.1981 affirmed vide order dated 06.05.1987, did not take any step to implement the same in any manner. No entry thereof was made in the revenue record for ten years till the plaintiffs purchased the suit land vide sale deeds dated 16.07.1991. Not only that, even after purchase by the plaintiffs, the aforesaid cancellation orders were not reflected in the revenue record for another almost fifteen years because for the first time, mutation no.1031 on the basis of the cancellation orders was entered on 24.12.2005. Thus for quarter century after passing of cancellation order dated 18.03.1981, the same was not reflected in any manner in the revenue record. Consequently, CWP No.8256 of 1987 -11- respondents have to blame themselves for the situation in which they find themselves. Thus it is apparent that plaintiffs are bonafide purchasers of the suit land.
In addition to the aforesaid, the plaintiffs are also in possession of the suit land since it was purchased by them in the year 1991. Prior to it, their vendor Naresh Dass and his predecessor-in-interest Om Parkash had been in possession of the suit land. The respondents thus did not make even any effort to take possession of the suit land for 25 years (till filing of the suit in the year 2006) pursuant to cancellation order dated 18.03.1981. Since plaintiffs' vendor and his predecessor had been in possession of the suit land continuously, for this reason also, the plaintiffs are bonafide purchasers of the suit land for valuable consideration and had no reason to suspect any defect in the title of their vendor or his predecessor-in-interest.
For the reasons aforesaid, I find that plaintiffs are bonafide purchasers of the suit land for valuable consideration and are, therefore, owners in possession thereof. Finding of the lower Appellate Court, to the contrary, is patently perverse and illegal and is based on misreading and misappreciation of the evidence and the law. Well reasoned finding of the trial Court in this regard has been reversed by the lower appellate court without any sufficient ground. Substantial question of law arising in the second appeal as mentioned hereinbefore is accordingly answered in the affirmative i.e. in favour of the plaintiffs/appellants. CWP No.8256 of 1987 -12-
Resultantly CWP No.8256 of 1987 is allowed and impugned orders (Annexures P-2 and P-3) are set aside to the extent of the land purchased by the petitioners from Om Parkash since the year 1968 till the year 1977 and writ petitioners are held to be bonafide purchasers and, therefore, owners in possession of the said land.
Regular second appeal No.1973 of 2009 is also allowed. Plaintiffs/appellants are held to be owners in possession of the suit land being bonafide purchasers thereof for valuable consideration. Judgment and decree of the lower Appellate Court are set aside and judgment and decree of the trial court decreeing the suit of the plaintiffs stand restored. The parties are, however, left to suffer their respective costs throughout.
3rd October, 2013 (L. N. MITTAL)
'raj'
JUDGE
Raj Kumar
2013.10.04 12:40
I attest to the accuracy and
integrity of this document
Chandigarh