Punjab-Haryana High Court
Khushal And Ors. vs Nathu Ram And Ors. on 16 December, 1998
Equivalent citations: (1999)123PLR585
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT T.H.B. Chalapathi, J.
1. The defendants 2 to 13 are the appellants.
2. The 1st respondent is the plaintiff. He filed a suit, Civil Suit No. 1089 of 1987 on the file of Sub Judge, 1st Class, Sirsa for a declaration that he is owner of the suit land measuring 194 Kanals 6 Marlas situated in Village Bani and the order of the Prescribed Authority dated 15.10.1980 and the subsequent order dated 16.3.1981 of the Allotment Authority and the entries in the revenue record showing defendants No. 2 to 13 to be the owners of the suit land are null and void and not binding on him and for recovery of possession of the land and also for an injunction restraining the defendants from alienating and transferring the suit land. According to the plaintiff, he became owner in possession of the suit land as per the decree dated 17.1.1974 under which an exchange of the land has been recognised between him and the 1st defendant. Ignoring this decree, the Prescribed Authority declared the suit land as surplus in the hands of the 1st defendant Ramji Lal by an order dated 15.10.1980 and the said land was allotted and utilised by an order dated 16.3.1981 in favour of defendants 2 to 13 by the Allotment Authority, Sirsa and the plaintiff was dispossessed from the suit land forcibly and illegally and in the revenue record, the defendants 2 to 13 were entered as owners. Further according to the plaintiff, the order dated 15.10.1980, 16.3.1981 and the action of the revenue authorities are illegal and not binding on him on the following grounds:-
(a) At the time of decision on the declaration furnished by defendant No. 1 Ramji Lal under Section 9 of the Haryana Ceiling on Land Holdings Act, the decree dated 17.1.1974 under which the exchange took place, was ignored;
(b) And the order dated 15.10.1980 had been passed against the mandatory provisions of law as contained in the Act;
(c) In case the aforesaid exchange was not declared as bona fide, the suit land should have been included in the permissible area of the first defendant according to the provisions of the Act;
(d) No copy of statement prepared on Form IV had even been sent to the plaintiff as required under Section 11(3) of the Act;
(e) The order of allotment dated 16.3.1981 passed by the Allotment Authority in favour of defendants 2 to 13 is no-est in the eyes of law since the original order is itself non-est and against the law;
(f) The plaintiffs name has been incorporated in the relevant column of revenue record since 13.3.1974 and the mutation was sanctioned in his favour on 20.6.1974 according to law;
(g) The original order dated 15.10.1980 is a collusive one and it resulted in miscarriage of justice under which the mandatory provisions of law, rules and procedures have been violated.
3. Defendants 2 to 13 contested the suit contending inter alia that the plaintiff has no locus standi to file the suit and the same is not maintainable and the Civil Court has no jurisdiction. They further pleaded that any transaction effected by the 1st defendant after the appointed day is liable to be ignored and that the Civil Court decree dated 17.1.1974 is a collusive one and, therefore, it was rightly ignored and the said decree did not vest any right or title in favour of the plaintiff in regard to the suit land and that the order of the Prescribed Authority dated 15th October, 1980 declaring the suit land as surplus is valid and the order of allotment dated 16.3.1981 has been validly issued and since the allottees also deposited the instalments, they were put In possession of the suit property and the plaintiff's suit is liable to be dismissed.
4. Defendant No. 14 which is the State of Haryana filed a separate written statement contending that the plaintiff had no right to be heard under Section 26 of the Haryana Ceiling on Land Holdings Act (hereinafter referred to as the "Act") and no notice has been given prior to the filing of the suit and the suit Is liable to be dismissed since the remedy under Section 18 of the Act is available and the Civil Court has no jurisdiction to interfere with the orders of the Authorities under the Act and the land has been allotted to defendants 2 to 13 after following the proper procedure.
5. The 1st defendant contended that the orders have been passed in accordance with law and they were not liable to be set aside and he has denied the allegations made in the plaint and he also prayed that the suit be dismissed with costs.
6. On the above averments, the trial Court framed the following issues:-
(1) Whether the plaintiff is continued to be the owner of the land in dispute? O.P.P. (2) Whether the order dated 15.10.1980 of the Prescribed Authority Sirsa and order dated 16.3.1981 of the Allotment Authority, Sirsa are illegal and liable to be set aside as alleged in the plaint? OPP.
(3) Whether the Civil Court has got no jurisdiction to try the suit? OPD.
(4) Whether the plaintiff has not served a legal notice under Section 80 of the Civil Procedure Code? OPD.
(5) Whether the suit of the plaintiff is not maintainable in the present form? O.P.D. (6) Whether the defendants are entitled to special costs under Section 35-A of Civil Procedure Code? OPD.
(7) Whether the plaintiff has no locus standi to file the present suit? O.P.D. (8) Whether the suit of the plaintiff is within limitation? OPD.
(9) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD.
(10) Relief.
7. The learned trial Judge on a consideration of the evidence on record held on Issues No. 2 and 3 that the orders of the Prescribed Authority and the Allotment Authority are not liable to be set aside that the Civil Court has no jurisdiction to try the present suit. On issue No. 1, he held that the plaintiff was not owner of the suit land. Issues No. 4, 5, 6, 7 and 9 were not pressed before the learned Judge. On issue No. 8, the learned trial Judge held that the suit was barred by limitation. In view of his findings, the learned trial Judge dismissed the suit filed by the plaintiff. Against the said decree and judgment of the trial Court dismissing the suit, the plaintiff filed an appeal Civil Appeal No. 123 of 1994. By the impugned judgment and decree dated 21.5.1998, the learned Additional District Judge, Sirsa set aside the decree and judgment of the trial Court and decreed the suit declaring that the plaintiff-appellant was owner of the suit property measuring 194 Kanals 6 Marlas and set aside the orders of the Authorities under the Act dated 15.10.1980 and 16.3.1981 on the ground that they are without jurisdiction and he further ordered the possession of the land to be restored to the plaintiff. He further observed that it is open to the respondent-State to issue fresh notice and pass orders afresh in accordance with law. Aggrieved by the said decree and judgment of the Appellate Court, some of the legal representatives of the allottees who died during the proceedings of the appeal, preferred this appeal.
8. The learned counsel for the appellant argued that the decree obtained by the plaintiff against the 1st defendant was not binding on the Authorities under the Act and, therefore, it is liable to be ignored and the learned Additional District Judge erred in placing reliance on the said decree. It is further argued that the Civil Court has no jurisdiction to go into the matter covered by the Land Reforms Act and since the plaintiff cannot claim any right or title in the property, no notice was necessary to be given to him and the decree passed on 17.1.1974 does not confer any right on the plaintiff since it is unregistered and collusive one. The Authorities have rightly allotted the land to defendants 2 to 13 and the learned Additional District Judge erred in interfering with the well considered judgment of the trial Court. Therefore, the appeal deserves to be allowed.
9. It is on the other hand contended by the learned counsel for the respondents that the oral exchange between the plaintiff and the 1st defendant took place prior to the decree and the decree passed is only in recognition of an existing right. Therefore, it does not require registration. Notice to ail persons interested in the suit property was required to be issued and in the absence of issuance of notice of the parties interested, the order of the Prescribed Authority under the Act is void ab initio and the Civil Court has jurisdiction to entertain the suit. Therefore, there are no grounds warranting interference with the decree and judgment of the learned Additional District Judge, Sirsa.
10. On the basis of rival contentions the following points arise for consideration in this appeal :-
(i) What is the effect of the exchange decree and whether it confers any right on the plaintiff in view of the provisions of the Haryana Ceiling on the Land Holdings Act.
(ii) Whether the Civil Court's jurisdiction is ousted and whether the plaintiff has to avail the remedies provided under the Haryana Ceiling on Land Holdings Act if he is entitled.
(iii) Whether order dated 15.10.1980 by the Prescribed Authority declaring the surplus area of the 1st defendant is void.
(iv) Whether the order of allotment is liable to be set aside.
11. The plaintiff filed the suit for a declaration that the order of the Prescribed Authority under the Haryana Ceiling on Land Holdings Act, 1972 is void and the consequential order of allotment of the suit property to defendants 2 to 13 are liable to be set aside.
12. The suit property was originally owned by the 1st defendant Ramji Lal, who was a big landowner. For determination of the surplus area under the Act in the hands of Ramji Lal, proceedings have been initiated. By an order dated 15.10.1980 Ramji Lal was found to be in excess of the ceiling area to an extent of 194 Kanals 6 Marlas. Ramji Lal challenged the said order of the Prescribed Authority in appeal, revision and further revision to the Financial Commissioner unsuccessfully. The writ petition filed by Ramji Lal was also dismissed. After declaring the land as surplus by the order dated 15.10.1980, the said land was allotted to the appellants on 16.3.1981 and in pursuance of the allotment order, possession was delivered to the allottees on 4.7.1981. While so, the plaintiff filed the suit on 2.5.1987 for declaration that the order of the Prescribed Authority declaring surplus area of Ramji Lal - 1st defendant is void and also challenged the order of allotment of the surplus land on 16.3.1981. According to the plainttff-1st respondent, he became owner of the suit land because of an exchange of his land with the land of Ramji Lal which has been confirmed by the decree of the Court passed in Civil Suit No. 87 of 17.1.1974. It is interesting to note that the suit for declaration filed by the plaintiff-1st respondent was registered on 17.1.1974 and the same was decreed on the same date without issuing any notice to the defendant or without recording any evidence. The decree in the said suit clearly shows that the suit was filed on 15.1.1974 and it was registered as Suit No. 87 of 17.1.1974. The judgment passed in that suit clearly shows that the defendant even without being served in the said suit, filed his written statement admitting even claim of the plaintiff on 16.1.1974 and the suit was decreed on 17.1.1974. Thus, it is clear from the record that the plaintiff, who is the 1st respondent in this appeal, filed the suit on 15.1.1974 and the defendant filed a written statement admitting the claim of the plaintiff on 16.1.1974 and the suit was numbered and decreed on 17.1.1974. No evidence has been recorded. It is only on the basis of the admission of the claim of the plaintiff by the 1st defendant, a decree has been passed. This is totally an unknown procedure adopted by the then Sub Judge, 1st Class, Sirsa in decreeing the suit. On the basis of the judgment, the only irresistible conclusion one can arrive at is that the decree obtained by the plaintif-1st respondent is a collusive one.
13. Except that, the plaintiff has not placed any evidence on record to show that there was any exchange of land. Therefore, it is to be taken that the exchange was only under the decree. There is no evidence as to when the exchange took place prior to the filing of the suit in 1974. The plaintiff also claimed that he has been in possession of the property only under the decree. Since the decree, creates title and interest in the suit property for the first time in the plaintiff, it requires registration. It is useful to refer to the decision of the Apex Court in Bhoop Singh v. Ram Singh, (1996-1)112 P.LR. 559 (S.C), wherein it has been held that if the compromise decree were to create for the first time right, title or interest in the immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the decree or order would, require registration. Thus since the decree has not been registered, the plaintiff cannot rely upon the exchange and the decree being collusive and un-registered one is to be ignored. Therefore, the plaintiff cannot be said to be an interested party. Therefore, no notice was required to be given to him. Under Sub-section (4) of Section 12 of the Haryana Ceiling on Land Holdings Act, 1972 for the purposes of determination of surplus area under the 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. Therefore, the decree obtained by the plaintiff is liable to be ignored on this ground also. Under Sub-section (3) of Section 12 of the Act, any area declared surplus shall be deemed to have vested in the State Government with effect from 24.1.1971. Therefore, the surplus area declared under the provisions of the Act shall become vested in the State Government with effect from 24.1.1971. Since the plaintiff is claiming the suit land under a collusive decree which he obtained in the year 1974, he cannot claim the same as the said land has been declared as surplus under the provisions of the Act. It has been held by the Supreme Court in Surinder Nath Dewan v. State of Haryana and Ors., (1994-2)107 P.LR. 422, as follows: -
"By operation of Section 12(3) of Haryana Ceiling on Land Holdings Act, the surplus land stood vested in the State free from all encumbrances on the land with effect from December 23, 1972, Jaswant Kaur v. State of Haryana, A.I.R. 1977 P&H 221, a Full Bench judgment which was approved by this Court in Jodha Ram v. Financial Commissioner, Haryana. (1994)1 S.C.C. 27, holds that the lands stood vested in the State absolutely effective from December 23, 1972. From that date, then pre-existing right, title and interest in 15 standard acres including that in 5 standard acres of land stood vested in the State and the appellant stood divested of the title to the land. Therefore, the question of restoring 5 acres of land to the appellant or giving notice to the appellant does not arise."
14. Therefore, the decree passed in Civil Suit No. 87 of 1974 on the file of the Court of Sub Judge, 1st Class, Sirsa does not confer any right on the plaintiff and in this view of the matter, no notice is required to be given to the plaintiff for determination of surplus area in the hands of a big landowner, who was the 1st defendant-Ramji Lal.
15. It is next to be seen whether the Civil Court has jurisdiction to go into the correctness of the orders of the Prescribed Authority, Appellate and Revisional Authority under the provisions of the Act. Section 26 of the Act clearly bars the jurisdiction of the Civil Court. Under Sub-section (2) of Section 26 of the Act, no order of, the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority made Under or in pursuance of this Act shall be allowed in question in any Court.
16. It has been held in Radha Bai v. State of Haryana, (1997-3)117 P.LR. 638 that the Civil Court has no jurisdiction to try the suit and that the jurisdiction of the Civil Court is barred in view of the provisions of Section 26 of the Haryana Ceiling on Land Holdings Act, 1972.
17. The land has been allotted to the appellants on 16.3.1981 and the possession of the land was delivered to the appellants on 4.7.1981. The plaintiff field the suit on 22.5.1987. If the plaintiff is aggrieved and even assuming for the sake of arguments that the Civil Court has jurisdiction, he has to file the suit within 3 years from the date of allotment to set aside the order. Further under the Haryana Utilisation of Surplus and Other Areas Scheme, no notice to the landowner before allotment is necessary. It is not the case of the plaintiff that the appellants are not eligible for allotment of the land under the Scheme. But once the land is declared surplus in the hands of a big landowner and vested in the State Government in view of the provisions of Section 12(3) of the Act, the State Government can allot the land to eligible persons.
18. Since the plaintiff has been held not entitled to the land and the decree obtained by him in 1974 is to be ignored for the reasons stated above, he has no right to challenge the order of the Prescribed Authority dated 15.10.1980. Further the appeal and the revision and also the writ petition filed by Ramji Lal, the 1st defendant have been dismissed. Therefore, the orders of the Prescribed Authority dated 15.10.1980 and the subsequent order of allotment dated 16.3.1981 have been upheld even by this Court in writ petition. Further the 1st defendant in the written statement has clearly stated that the impugned order passed by the Prescribed Authority under the provisions of the Haryana Ceiling on Land Holdings Act, 1972 and Haryana Utilisation of Surplus and other Areas Scheme, 1976 were according to law and were not liable to be set aside. When the land owner himself admits that the orders of the Prescribed Authority and the Allotment Authority were validly passed, plaintiff who has no right or title in the property and the decree obtained by him is not valid and binding on the parties, cannot challenge the order of the Prescribed Authority and also the subsequent order of the Allotment Authority. In this view of the matter, I am of the opinion that the learned Additional District Judge erred in decreeing the suit.
19. I accordingly allow this appeal, set aside the decree and judgment of the learned Additional District Judge, Sirsa and restore the judgment and decree of the learned Sub-Judge, 1st Class, Sirsa dated 5.4.1994. No order as to costs.