Punjab-Haryana High Court
Gurbux Singh And Ors. vs Hari Chand Jain And Ors. on 19 September, 2002
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by unsuccessful defendants- Gurbux Singh and Chhota (now expired) against the judgment and decree passed by both the courts below, vide which the suit of the plaintiffs-respondents was decreed for joint possession as owners of half share of the land in dispute measuring 11 kanals 11 marlas and it was further declared that the sale certificates Ex.D-7 and D-8 issued in favour of the aforesaid appellants will have no effect on the rights of the plaintiffs qua their share in the aforesaid land.
2. The brief facts of the case are that Mst. Salamat Bibi and Mst. Janat Bibi were owners of the land in question in equal shares, as recorded in the Jamabandi for the year 1939-40 (Ex.D-1). In the said Jamabandi, the name of Rahim Baksh, who was Hajam by caste, is entered in the column of cultivation as Muafidar. The same is the position in the Jamabandi for the year 1934-44 (Ex.D-2). Vide registered sale deed dated 27.4.1943 (Ex.D-15), Mst. Salamat Bibi sold her half share in favour of Mehar Chand, father of the plaintiffs, for a consideration of Rs. 800/-. Thereafter, aforesaid Mehar Chand was recorded as owner of half share in the column of ownership in the Jamabandi for the year 1943-44 (Ex.P-9). In the column of cultivation, the name of Rahim Baksh continued as Muafidar. In the Jamabandi for the year 1951-52 (Ex.P-10), Mehar Chand has been again mentioned as owner of half share of the land in dispute. During the consolidation, the old khasra No. was converted into new khasra Nos. and in the consolidation record also, Mehar Chand was recorded as owner of half share. After the consolidation, Jamabandi for the year 1961-62 (Ex.P-15) was prepared in which Mehar Chand was also recorded in the column of ownership of half share as Malik Kabza and other half share was recorded in the name of Central Government. In the column of cultivation, the names of Gurbux Singh and Chhota (defendants) have been recorded as Gair Marusi through Ex-Muafidar. The same entries continued in the revenue record, as is clear from Jamabandi for the year 1971-72. On 19.2.1977, the plaintiffs filed a suit for permanent injunction, when they came to know that the Sales Department of the Government of Punjab was going to sell the entire land including their half share. During the pendency of the suit, the sale certificates were issued on 9.1.1978 in favour of defendants Gurbux Singh and Chhota. Then the suit was amended and a prayer was also made for cancellation of the auction sale as well as the aforesaid sale certificates, which are Ex.D-7 and D-8 of the record. An alternative prayer was also made for a decree of joint possession. The said suit was contested by the State of Punjab as well as the defendants Gurbux Singh and Chhota. The State of Punjab in its written statement alleged that the suit property was evacuee property as before partition the same was owned and possessed by Muslims who have migrated to Pakistan and the plaintiffs are not the owners of any share of the property in dispute and they are having no right or interest in the same. The disputed property being the evacuee property can be disposed of by the Government of Punjab under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, the 1954 Act'). Since the entire property is recorded in the ownership of Central Government and the plaintiffs have no interest in the same, the question of partition does not arise. It was also alleged that the jurisdiction of the civil court is barred under the aforesaid Act. The defendants Gurbux Sigh and Chhota filed their separate written statement pleading that the civil Court has no jurisdiction to hear the matter and the custodian Department was exclusive owner of the property in dispute and that was rightly sold by it to them and their sale certificates are perfectly valid and legal. They have also become owners of the suit property by way of adverse possession.
3. Both the Courts blow have decreed the suit of the plaintiffs. It was held that the plaintiffs are co-sharer of the land in dispute as their father had purchased half of its share from Mst. Salmat Bibi in the year 1943 and thereafter he was recorded as owner of half share in the column of ownership throughout in the revenue record and after the death of their father, they are recorded as owners of half share in the revenue record. It was further held that so far as the remaining half share of Mst. Janat Bibi is concerned, that vested in the Custodian Department after the migration of Muslims from this country and Central Government became owner to the extent of only half share of Mst. Janat Bibi. It was also held that jurisdiction of the civil Court is not barred in the present case because half share of the plaintiffs was wrongly sold by the Sales Department. It was also held that the defendants Gurbux Singh and Chhota cannot be held to have become owners by way of adverse possession, as their possession on the land in dispute was as a tenant, as per the revenue record.
4. The learned Additional District Judge has confirmed the aforesaid findings recorded by the trial Court while dismissing the two appeals filed against the said judgment, one by the State of Punjab and another by defendant-Gurbux Sigh and Chhota. State of Punjab has not chosen to file the Regular Second Appeal. However, the defendants Gurbux Singh and Chhota have filed the present Regular Second Appeal.
5. I have heard the arguments of Shri Arun Jain, learned counsel for the appellants and Shri ML. Sarin, Senior Advocate for the respondents.
6. Shri Arun Jain, learned counsel for the appellants, submitted the following three substantial questions of law arising in this Regular Second Appeal:-
"1. Whether in the facts and circumstances of the instant case the contesting respondents having purchased only Haq-malkana vide sale deed Ex. P-15 can claim absolute ownership and possession over the land in question?
2. Whether in the facts and circumstances of the instant case the entries in the revenue record showing the land in question as 'Arazi-matruka' can be questioned in the civil Court in view of Section 46 of the Administration of Evacuee Property Act, 1950?
3. Whether in view of the auction dated 28.1.64 the appellants have become owner by adverse possession.
7. I have heard the arguments on the aforesaid questions of law formulated by the counsel for the appellants. In my opinion, these questions are not questions of law but they are questions of facts. From the overwhelming documents available on the record, it is clear that Mst. Salamat Bibi and Mst. Janat Bibi were owners of the land in dispute in equal shares. Their names were recorded in the column of ownership. It is also clear that the name of Rahim Baksh, who was Hajam by caste, was recorded in the column of cultivation as Muafidar. The arguments of the learned counsel for the appellants that Mst. Salamat Bibi was having only Haq-malkana to the extent of half share, whereas Rahim Baksh Muafidar was the real owner, cannot be accepted. The argument of the learned counsel is that Jagirdar and Muafidar are the same thing. This is not correct. There is a difference between the two terms. Muafidar is a remission of land revenue to be paid to the owner or to the Government. Jagirdari is an assignment of land revenue which is collected and paid to the Jagirdar. In the present case, Muafi was not given by the Government to the owner of the land. In fact, Muafi was given by the land owners, i.e., Mst. Salamat Bibi and Mst. Janat Bibi to Rahim Baksh and that too, on the limited payment of land revenue because of the service to be rendered by Rahim Baksh. That Muafi did not create any ownership in favour of Rahim Baksh. That is why, Mst. Salamat Bibi and Mst. Janat Bibi were recorded as owners in the land in question in equal share in the column of ownership and Rahim Baksh was recorded as Muafidar in the column of cultivation. Later on, in the year 1943, Mehar Chand became owner of the share of Mst. Salamat Bibi by virtue of the sale deed. That being the position, when the Mustlims migrated to Pakistan, only the share of Mst. Janat Bibi vested in the Central Government being evacuee property. Since Mehar Chand had already become the owner of half share of Mst. Salamat Bibi and who was Hindu, never migrated to Pakistan and thus became the owner of half share. After the partition, Mehar Chand continued to be recorded as owner to the extent of half share in the land in dispute throughout in the revenue record and after his death, the present plaintiffs are recorded as owners of the half share, as is clear from the jamabandi for the year 1971-72. The contention for the appellants that Mehar Chand only purchased Haq-malkana vide sale deed dated 27.4.1943 and he did not become full owner of the land in question, cannot be accepted. After considering the overwhelming documentary evidence on record, both the courts below have recorded a finding of fact that Mehar Chand became owner of the half share in the land in dispute after the purchase of the same from Mst. Salamat Bibi and the said share did not vest in the Central Government after migration of the Muslims in the year 1947, This finding of fact cannot be interfered by this Court in the Regular Second Appeal, in view of the decisions of the Hon'ble Supreme Court in Ishwar Dass Jain (dead) through LRs. v. Sohan Lal (dead) by LRs., (2000)1 S.C.C. 434" Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs. and Ors., (2001-2)128 P.L.R. 492 (S.C.) and Veerayee Ammal v. Seeni Ammal, (2002) 1 S.C.C. 134.
8. The second contention of the appellants that the jurisdiction of the civil Court is barred under Section 46 of the Administration of Evacuee Property Act, 1950 (for short, the 1950 Act) is also not acceptable. In support of his contention, the counsel for the appellants relied upon the decision of Hon'ble Supreme Court in Custodian Evacuee Property Punjab and Ors. v. Jafran Begum, (1968)70 P.L.R. I (S.C.), wherein it was held as under: -
"Generally speaking the jurisdiction of the civil or revenue court is barred under Section 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property. Where the question whether certain properties are evacuee properties has been decided under Section 7 etc., where that decision is based on issues of fact or issues of law, the jurisdiction of courts is clearly barred under Section 46(a). No distinction can be drawn between decisions under selection 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by Section 28 and Section 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated."
9. According to the aforesaid judgment, the jurisdiction of the civil Court is barred where the question whether a particular property is evacuee property or not, has been decided under Section 7 of any other provisions of the 1950 Act. Whether such decision rendered in the aforesaid Act is based on issues of fact or issues of law, the jurisdiction of civil Court is clearly barred under Section 46 of the Act, but in the present case the matter was never adjudicated upon by the authority under the Act. It is a simple suit for declaration where the property of the plaintiffs was illegally sold by the Custodian Department. The counsel for the appellants also argued that even if the Sales Department wrongly and illegally sold the property to somebody else treating the same as an evacuee property, such person has to take its remedy under the aforesaid Act by filing the claim before the appropriate authority. Such contention of the appellants also cannot be accepted. When any civil right of a citizen is infringed by the authority or by any person, he has always a civil remedy open to him. If somebody is selling the land of a person, the said person is certainly entitled to maintain a civil suit to protect his interest. It was held in Chuhar Singh v. Smt. Kaki, (1969)71 P.L.R. 611 that jurisdiction of the civil Court is not barred when the property in dispute has not been declared as evacuee property by some adjudication and when the property had not vested as evacuee property in the Custodian under the East Punjab Evacuees (Administration of Property) Act, 1947 (for short, the 1947 Act'), it would not be deemed to be evacuee property within the meaning of the Act of 1950 and would not deemed to be vested in the Custodian. Under these circumstances, neither the provisions of Section 12 of the 1947 Act nor of Sections 27 and 46 of the Act of 1950, would be applicable.
10. In view of this, there is no force in the contention of the appellants that jurisdiction of the civil Court is barred under Section 46 of the Act of 1950.
11. Learned counsel for the appellants then argued that Gurbux Singh and Chhota have become owners of the land in dispute by way of adverse possession and the suit of the plaintiffs is barred by time. Though both the courts below have decided the issue regarding adverse possession and limitation against them, which is a pure finding of fact, but, however, I have considered this argument of the appellants also and did not find any force in the same. Admittedly, Gurbux Singh and Chhota were already in possession of the property prior to the alleged auction in their favour on 28.1.1964. Their possession has been described in the revenue record as Gair Marusin of Central Government, ex-Muafidar. Thus, they were tenants on the land in question and a tenant cannot take a plea of adverse possession against a person who is recorded to be the owner of the land. It does not lie in the mouth of the tenant to say that he is in possession of the land adversely. They could be in adverse possession of the land only if they set up hostile title to the knowledge of the owner, that is, Mehar Chand or after him the plaintiffs and that from a particular point of time. The defendants neither pleaded nor proved these facts in the present case.
12. The learned counsel for the appellants further argued that at least from the date of auction, i.e., 28.1.1964 the possession of the defendants should deem to be adverse. This contention of the learned counsel for the appellants is without any force because mere auction of the land does not confer any right on the defendants until the same is confirmed by the authority. There is no material on the record which prove that the auction in favour of the defendants held on 28.1.1964 was confirmed by the authority. Rather, it has come into evidence that the sales Department was going to re-auction the land in question on 28.1.1977, when the present suit was filed. During the pendency of that suit, the Sales Certificates were issued on 9.1.1978. It is not clear as to how the Sales Certificates were issued when the Sales Department was going to re-auction the land on 28.1.1977. In such circumstances, the starting point of limitation would have been 9.1.1978 from which date the present suit is not barred by limitation.
13. For the reasons mentioned above, this appeal is dismissed, with no order as to costs.