Punjab-Haryana High Court
Mohinder Singh vs State Of Haryana And Ors. on 12 October, 2007
Equivalent citations: (2008)149PLR96
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. Petitioner Mohinder Singh (one of the decree holders) has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 5.10.2005 passed by the Executing Court dismissing the execution petition filed by the petitioner under Order 21 Rule 32 and Sections 94 and 151 of the Code of Civil Procedure for executing the decree dated 17.4.1992 passed in Civil Suit No. 285 of 16.4.1986 titled as Attar Singh and Ors. v. State of Haryana and Anr.
2. Before considering the contentions of the counsel for the petitioner, challenging the aforesaid order, it will be essential to advert to the few facts of the case and the background under which the decree dated 17.4.1992 was passed by the Civil Court.
3. Undisputedly, Attar Singh, father of the petitioner was a big landlord. Vide order dated 5.1.1960, the land measuring 242 kanals 4 marlas owned by him was declared surplus by the prescribed authority under the provisions of the Punjab Security of Land Tenures Act (hereinafter referred to as 'the Security Act'). The said order became final and the same was not challenged either by the petitioner or by his father and brother Mukhtiar Singh. With the coming into force of the Haryana Ceiling on Lands Holdings Act, 1972 (hereinafter referred to as 'the Ceiling Act'), the said land which was declared surplus by the aforesaid order under the provisions of the Security Act absolutely deemed to have been vested in the State of Haryana in view of the provisions of Sub-section (3) of Section 12 of the Ceiling Act from the appointed date i.e. 24.1.1971. Thereafter the State became the absolute owner of the said land and all rights, title and interest (including the contingent interest), 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. Subsequently, mutation of the said land was sanctioned in favour of the State of Haryana vide mutation No. 351 of 18.04.1982.
4. Thereafter, on 16.4.1986, the petitioner, his father Attar Singh and his brother Mukhtiar Singh filed the aforesaid civil suit challenging the order dated 5.1.1960 passed by the prescribed authority declaring the aforesaid land as surplus, as illegal, null and void on the ground that the prescribed authority has illegally and wrongly passed the said order by ignoring certain facts and certain transfers already made by the big land owners. The said suit was decreed vide judgment and decree dated 17.4.1992 and the order dated 5.1.1960 passed by the prescribed authority was declared null and void and the mutation sanctioned in favour of the State was also declared null and void. The defendants were also restrained from dispossessing the plaintiffs forcibly from the suit land except in due course of law. During the pendency of the said suit, an interim injunction was granted restraining the defendants from alienating the suit land to any person and from dispossessing the plaintiff from the suit land. That injunction was confirmed and remained operative till the passing of the decree.
5. Subsequently after passing of the said decree, the petitioner, his father and brother made efforts to get the mutation with regard to the suit land sanctioned in their favour on the basis of the said decree. When the revenue authorities did not sanction the mutation in their favour on the basis of the said decree, then brother of the petitioner, namely, Mukhtiar Singh filed C.W.P. No. 8850 of 1994 in this court. The said writ petition was dismissed by this Court while observing as under:
By virtue of Sub-section (3) of Section 12 of the Haryana Ceiling of Land Holdings Act, 1972, 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 been vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared in pending proceedings to be decided under the Punjab Law or Pepsu law shall be deemed to have vested in the State Government with effect from the date of such declaration. According to definition given in Clause (c) of Section 3 of the said Act, appointed day' means the 24th day of January, 1971.
In view of the aforesaid provisions of the Act, the area which had been declared surplus by the prescribed authority even under the old Act had duly vested in the State. There is no other material on the record that after the aforesaid appointed day the area which had so vested in the State of Haryana had again been divested or could be considered permissible area under the Act of the land owners. Thus the civil court judgment and decree which was passed at a much later stage on 17.4.1992 cannot be legally relied upon to hold that such area legally do not vest in the State of Haryana and the judgment and decree of the civil court has to be ignored.
For the foregoing reasons, there is no merit in this petition and the same is hereby dismissed.
6. The said order was not further challenged by none of the decree holders including the petitioner and the same has become final. After passing of the above-said order, the petitioner filed the instant execution application by alleging the respondents No. 3 to 5, who are the government officials, and respondents No. 6 to 19, who are the allottees of the surplus land, have violated the decree dated 17.4.1992, therefore, they are liable to be proceeded against under Order 21 Rule 32 C.P.C. and the defendants be restrained from dispossessing them from the suit land. The Executing Court dismissed the said application by the impugned order while observing that in view of the order dated September 19, 1994 passed by a Division Bench of this Court in C.W.P. No. 8850 of 1994, the decree dated 17.4.1992 cannot be enforced. However, a finding has been recorded that respondents No. 3 to 5 were not aware of the decree and further that respondents No. 6 to 19, who are the allottees of the surplus land, were not parties to the decree dated 17.4.1992, therefore, they are not liable to be proceeded against Order 21 Rule 32 C.P.C. Against the said order, the instant revision petition has been filed.
7. Learned Counsel for the petitioner submitted that vide judgment and decree dated 17.4.1992, the suit of the plaintiffs was decreed and the order dated 5.1.1960 passed by the prescribed authority declaring the aforesaid land as surplus, and the mutation sanctioned in favour of the State, were declared illegal, null and void and the defendants were further restrained from dispossessing the plaintiffs forcibly from the suit land or allotting it to any one except in due course of law. He submitted that the said decree had become final as the same was not challenged by respondents No. 1 to 5. Learned Counsel further submitted that in the said decree, an issue was framed about the jurisdiction of the Civil Court. The said issue was decided in favour of the decree holders and thereafter the suit filed by the plaintiff-petitioner was decreed declaring the order of surplus as null and void. Learned Counsel submitted that till the decree dated 17.4.1992 is set aside by the Executing Court is bound to enforce the said decree as it is well settled the Executing Court has no power to go behind the decree and then to say that the decree is un-executable. Therefore, the decree holder is entitled to enforce the said decree under Order 21 Rule 32 CPC. Learned Counsel further submitted that the Civil Court was having, the jurisdiction to declare the order dated 5.1.1960 passed by the prescribed authority as illegal and void as before passing the order of surplus, the decree holders Mohinder Singh, Mukhtiar Singh, to whom certain land was transferred by their father, were not given notices regarding declaring their land as surplus nor copy of Form F was sent to them as these documents were not available on the record.
8. On the other hand, learned Counsel for the respondent-State submitted that the Civil Court decree dated 17.4.1992 passed in favour of the decree holders is a nullity as the same was passed by the Court without having any jurisdiction and such kind of decree is having no value and the same is to be ignored in view of Sub-section (4) of Section 12 of the Ceiling Act. Learned Counsel submitted that any land which was declared surplus in the hand of big land owners under the provisions of the Security Act, if not vested in the State before coming into force of the Ceiling Act, absolutely vest in the State free from all encumbrances under Section 12(3) of the Ceiling Act. He further submitted that Section 26 of the Ceiling Act absolutely bars the jurisdiction of the Civil Court to entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State Government to the surplus area under this Act; or settle, decide or deal with any matter which is under this Act required to be settled, decide or deal with by the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority. Sub-section (2) of Section 26 of the said Act further provides that no order of the Financial Commissioner, the Collector, or the Prescribed Authority made under or in pursuance of this Act shall be called in question in any court. Learned Counsel submitted that this Court while keeping the aforesaid legal position in C.W.P. No. 8850 of 1994 has rightly declared that the decree dated 17.4.1992 passed in favour of the petitioner is to be ignored as the same was passed by the Court having no jurisdiction. Therefore, in view of the said order passed by the Division Bench of this Court, the Executing Court has rightly dismissed the execution application.
9. After hearing the counsel for the parties and going through the impugned order passed by the Executing Court, I do not find any merit in this petition. It is well settled fundamental principle that a decree passed by the Civil Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. In the present case, the land in question was declared surplus on 5.1.1960 under the provisions of the Security Act. The said order was not challenged either by the father of the petitioner or his sons by filing an appeal or revision before the Collector and the Commissioner. That order became final, and with the coming into force of the Ceiling Act, the land which was declared surplus by the aforesaid order under the provisions of the Security Act absolutely deemed to have been vested in the State of Haryana in view of the provisions of Sub-section (3) of Section 12 of the Ceiling Act from the appointed dated i.e. 24.1.1971. Section 26 of the Ceiling Act provides that the Civil Court has no jurisdiction to entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State Government to the surplus area under this Act; or settle, decide or deal with any matter which is under this Act required to be settled, decide or dealt with by the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority. Section 12(4) of the Ceiling Act further provides that 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. Keeping in view these provisions, the civil suit filed by the petitioner, his father Attar Singh and brother Mukhtiar Singh challenging the order dated 5.1.1960 being illegal and void on the ground that the suit land was wrongly declared as surplus without following the procedure or without issuing notices to them or without issuing Form F, in my opinion was not maintainable before the Civil Court and the Civil Court was having no jurisdiction to entertain the said suit in view of the provisions of Sections 12(4) and 26 of the Ceiling Act. Thus, by taking into consideration those facts, this Court in C.W.P. No. 8850 of 1994 has held that the Civil Court decree passed in Civil Suit No. 285 of 16.4.1986 is liable to "be ignored. The Supreme Court in Sushi Kumar Mehta v. Gobind Ram Bohra has held that a decree passed by a Court without jurisdiction is a nullity and the plea with regard to this invalidity can be set up whenever and wherever the decree is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. It has been further held therein that the doctrine of res-judicata under Section 11 C.P.C. does not apply to a case where the decree is a nullity. In this regard, the following observation has been made by the Supreme Court:
...the doctrine of res-judicata under Section 11 C.P.C. is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as resjudicata in subsequent suit for proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to question of fact or law or mixed questions does not operate as resjudicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of the right, cannot be deemed to be a matter in issue. The principle of res-judicata is a facts of procedure but not of substantive law. The decision of an issue of law founded on fact in issue would operate as res-judicata. But when the law since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res-judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res-judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the Court inherently lacks jurisdiction consent cannot confer jurisdiction.
Similar view was taken by the Supreme court in Sarwan Kumar v. Madan Lal Aggarwal and Balwant N. Viswamitra v. Yadav Sadashiv Mule (dead) through L.Rs. .
10. In view of the aforesaid legal and factual position, there is no force in this revision petition and the same is hereby dismissed.