Punjab-Haryana High Court
Collector Sonepat And Others vs Ram Sarup Jain Through Lrs on 4 May, 2012
Author: Sabina
Bench: Sabina
R.S.A.No. 2338 of 1985 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 2338 of 1985
Date of decision: 4.5.2012
Collector Sonepat and others
......Appellants
Versus
Ram Sarup Jain through LRs.
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.G.S.Chahal, Addl.A.G.Haryana.
Mr.C.B.Goel, Advocate,
Mr.Sanjeev Gupta, Advocate and
Mr.Nitin Jain, Advocate,
for the respondents.
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SABINA, J.
Plaintiff had filed a suit for declaration and permanent injunction.
The case of the plaintiff, in brief, was that the agricultural land in question was owned by Begh Raj and Anup Singh, sons of Med Singh residents of village Ganaur. Abrahim, Fazal Ahmad, Abdul Hameed and Hafiz Abdul Hukam, Mohamedans were in possession of the land as occupancy tenants. Abrahim and others mortgaged their occupancy rights with Tule Ram, father of the plaintiff, vide registered mortgage deed dated 10.7.1920 for a sum R.S.A.No. 2338 of 1985 2 of ` 800/-. After the death of Tule Ram, plaintiff being his son had inherited the mortgage rights. During consolidation, new khasra numbers were allotted qua the suit property along with old khasra numbers. The plaintiff was in continuous possession of the suit land. The land had not been got redeemed and therefore, they had become owners of the suit land by virtue of the Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. The defendants unlawfully claimed that the land vested in the custodian and had started proceedings against the plaintiff. Vide order dated 14.3.1977, the competent officer held that the land in question vested with the custodian automatically by virtue of Section 9 (2) of the Evacuee Interest (Separation) Act, 1951. Appeal filed by the plaintiff before the District Judge, Rohtak was dismissed on 26.11.1979. Hence, the suit was filed by the plaintiff.
Defendants, in their written statement, averred that the Civil Court had no jurisdiction to try the suit. The suit was barred by limitation. The suit property being evacuee property vested in the custodian.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether the plaintiff has become owner of the suit land by lapse of time? OPP.
2. Whether the orders of the competent officer dated 14.3.1977 and that of the Appellate3 Officer dated 26.11.1979 are illegal and without jurisdiction? OPP
3. Whether the civil court has no jurisdiction to try the R.S.A.No. 2338 of 1985 3 present suit ? OPD
4. Whether the suit is barred by principle of rejudicata? OPD
5. Whether the suit is barred by time ? OPD
6. Whether the plaintiff is estopped to file the present suit by his own conduct ? OPD
7. Whether the Muslim occupancy tenants migrated to Pakistan and the land in suit validly vested in the custodian ? OPD
8. Whether the mortgage of the land in dispute stood extinguished under Section 9 (2) of the Evacuee Interest (Separation) Act, 1951 ? OPD
9. Whether the plaintiff has got no cause of action to file the present suit ? OPD
10. Relief."
Parties led their evidence in support of their case. The trial Court vide judgment and decree dated 1.2.1983 dismissed the suit of the plaintiff. In appeal the first Appellate Court vide judgment and decree dated 28.3.1985 decreed the suit filed by the plaintiff. Hence, the present appeal by the defendants.
After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal.
Learned first Appellate Court has held that the suit property had never been declared as evacuee property by the competent authority and hence, could not vest in the custodian. In R.S.A.No. 2338 of 1985 4 Custodian Evacuees Property, Punjab vs. Gujar Singh and others, Vol. LV-1953, Punjab Law Reporter, 94, it has been held as under:-
"I am not able to accept that the general proclamations issued together with the provisions for the vesting of evacuee property in the Custodian made in the various sections of the various Acts and Ordinances can be taken as determination that any particular property which the Custodian now chooses to name is evacuee property. The several enactments provided that while there should be no inquiry by the Civil Courts, there was to be inquiry by the Custodian in the case of specific items of property said to be evacuee property. Where the Custodian assumed physical possession or assumed control by express notification the inquiry of course was contingent upon objection raised by claimants. In those cases of property of which no possession was taken, no control assumed by express notification or no inquiry made such as that contemplated by Section 7 of the present Act or Section 7 of the Central Ordinance clearly there has been no determination that the particular property is evacuee property. The application under Section 17 of the present Act or Section 15 of the Ordinance of 1949 is an application to require the Court to set aside orders affecting evacuee property, and it must be a condition precedent to such application that there has been R.S.A.No. 2338 of 1985 5 determination that the particular property is evacuee property."
DW-1 Hukam Nand, Parwari Halqa as well as DW-2 Ram Kishan, Clerk, Tehsildar Sales Office in their cross-examination admitted that the suit property had never been declared as evacuee property. Learned State counsel has failed to point out from the record that the suit property had, in fact, been declared as evacuee property and could, thus, vest in the custodian. The finding of fact given by the learned first Appellate Court that the suit property had never been declared as evacuee property, thus, cannot be interfered with by this Court in appeal.
No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed.
(SABINA) JUDGE May 04, 2012 anita