Punjab-Haryana High Court
(O&M;) Punna vs Mohinder Singh & Ors on 11 March, 2015
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
R.S.A.No. 1996 of 1990 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1996 of 1990
Date of decision: 11.3.2015
Punna
......Appellant
Versus
Mohinder Singh and another
.......Respondents
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr.J.V.Yadav, Advocate,
for the appellants.
Mr. Avin Arora, Advocate
for Mr.Pritam K.Saini, Advocate,
respondent No.1.
****
Raj Mohan Singh, J.
1. Defendant No.1 is in appeal against judgment and decree dated 27.7.1990 passed by Additional District Judge, Ambala, whereby appeal against judgment and decree dated 22.8.1988 passed by Sub Judge, IInd Class, Jagadhari was dismissed.
2. Plaintiff Mohinder Singh filed a suit for declaration to the effect that he is owner of land measuring 12 kanal 18 marla shown in the head note of the plaint and for possession as a consequential relief. Plaintiff alleged that he had purchased the land in question along with other land under Section 18 of the Punjab Security of Land Tenures Act, 1953 vide order dated 23.3.1972 passed by ANITA DEVI Assistant Collector, Ist Grade, Jagadhari. One Smt.Anokhi Devi was 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 2 big land owner and plaintiff was tenant under her and he was entitled to purchase the land being an ejected tenant of the big land owner. 34 kanal 19 marla of land including the suit land was purchased by him for a total sale consideration of ` 5,005/- and mutation to that effect No.184 dated 17.9.1972 was attested in his favour and thus, plaintiff became owner of the suit property. Plaintiff further alleged that he inducted defendant No.1 to be his tenant over the suit land. However, the order of purchase was not incorporated in the file of surplus case of big land owner Smt.Anokhi Devi by the Agrarian Department and, therefore, the land in question was not deducted from the surplus pool of the big land owner in the record of the Agrarian Department.
3. In the year 1978, father of defendat No.1 was murdered and plaintiff was suspected in that case along with one Jiwana. Defendant No.1 manipulated the revenue entries in his name on account of allotment along with some other land and the said allotment was claimed to be illegal and not binding upon the plaintiff.
4. Mutation No.279 dated 14.1.980 of the suit land was recorded, firstly, in the name of State of Haryana of the entire surplus land of big land owner Smt. Anokhi Devi including the suit land and this mutation in favour of Government of Haryana was also claimed to be illegal. Thereafter, mutation No.289 dated 19.4.1980 was sanctioned in favour of defendant No.1 on the basis of allotment made in his favour by the authorities vide order dated 12.10.1978. This order of allotment and mutation thereof was also claimed to be ANITA DEVI illegal and not binding upon the rights of the plaintiff. 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 3
5. Suit was contested by the defendants. Defendant No.1 alleged that the plaintiff is son-in-law of big land owner Anokhi Devi and the defendants had no knowledge of the order dated 23.3.1972, which was a collusive affair in order to circumvent the provision of surplus law. It was alleged that the suit land was surplus land of big land owner, which stood vested in State of Haryana w.e.f. appointed day of Haryana Ceiling on Land Holdings Act, 1972 (for short 'the Ceiling Act'). The land was rightly allotted in favour of defendant No.1 by the competent authority and he had already deposited the amount of instalments in respect of the suit land. Besides raising other grounds, defendant No.1 claimed that the suit is not maintainable and is time barred and the Civil Court has got no jurisdiction to entertain the suit in question.
6. State of Haryana i.e. defendant No.1 also contested the suit on other grounds and it was asserted that the land was surplus land of Smt. Anokhi Devi, which stood vested in State of Haryana and was rightly allotted to eligible persons like defendant No.1 under the scheme of allotment formulated under the Ceiling Act.
7. After filing replication the trial Court framed the following issues:-
1. Whether the plaintiff became owner in possession of the suit land by way of purchase/application vide order dated 23.3.1972 as alleged ? OPP
2. Whether the order dated 23.3.1972 was nto recorded in surplus case file as alleged, if so its effect ? OPP ANITA DEVI
3. Whether the mutation No.279 dated 14.1.980 is illegal, 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 4 null and void and nonest as alleged ? OPP
4. Whether the mutation No.289 dated 19.4.1980 in favour of defendant No.1 is illegal and void ? OPP
5. Whether the plaintiff has no locus standi as alleged ?
OPD 1 and 2
6. Whether the plaintiff is stopped from filing the suit as alleged ? OPD-1
7. Whether the suit is not maintainable as alleged? OPD- 1
8. Whether the suit is time barred ? OPD-1
9. Whether the civil court has no jurisdiction as alleged ? OPD-1
10. Whether the defendants are entitled to special costs as alleged, iof so to what amount ? OPD 1 and 2
11. Whether the suit is bad for want of notice under Section 80 CPC ? OPD-2
12. Relief.
8. Trial Court tried issues No.1 to 4 jointly and held that the land in question was rightly purchased by the plaintiff and was protected in terms of Section 8 of the Ceiling Act. Suit was decreed vide judgment and decree dated 22.8.1988 and plaintiff was declared to be owner of the suit land and mutation No.289 in favour of defendant No.1 was held to be illegal and void abnitio and a decree for possession was also passed as a consequential relief in favour of the plaintiff. The said judgment and decree of the trial Court was ANITA DEVI upheld by the lower Appellate Court vide judgment and decree dated 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 5 27.7.1990.
9. The present regular second appeal was filed under Section 41 of the Punjab Courts Act. Framing of question of law was not necessary in the light of decision rendered by Full Bench of this Court in 'Ganpat versus Smt. Ram Devi and Ors. 1977 PLR Page- 1', wherein it was held that the provisions of Section 41 of the Punjab Courts Act, are in no way effected and curtailed by the amendment made in Section 100 of CPC. Now, since the regular second appeal is maintainable only with the aid of section 100 CPC, therefore, substantial questions of law is sine qua non for maintaining the appeal.
10. Prior to amendment of Section 100 CPC, a second appeal could have been filed before this Court on the grounds set out in clauses (a) to (c) of Section 100 (1) CPC i.e. (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law and (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
11. Now the interference in the second appeal could only be made if substantial question of law arises in the case. Therefore, the interference cannot be only because the order is contrary to law, but when the disputed issues raised a substantial question of law. Limiting such a power in the Appellate Authority is based on public ANITA DEVI policy having roots in the maxim 'interest reipublicae ut sit finis litium'. 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 6 The underlined purpose was to bring finality to the issues/litigation at some point of time.
12. In the present appeal, the substantial question of law has not been framed. This Court proceeds to formulate the following substantial questions of law on which the claim of the appellant can be tested:-
1.Whether the land purchased by the plaintiff under Section 18 of the Punjab Security of Land Tenures Act from the surplus land of the big land owner is invalid and has the effect of diminishing the surplus area of the land owner ?
2. Whether the plaintiff was a lawfully inducted tenant over the land in question and is entitled to purchase the land even after vesting of the land in question in State of Haryana w.e.f. the appointed day of the Ceiling Act.
3. Whether the purchase in favour of the plaintiff would be invalid against the claim of State of Haryana to dispose of the land in question for the settlement of the tenants on the ground of its being surplus land and any person inducted by the landlord after 15.4.1953 would be having no title to it as a tenant and would not have purchased under Section 18 of the Punjab Surplus Land Tenures Act.
4. Whether the purchase made by the plaintiff violates Section 10-A (c ) of the Punjab Security of Land Tenures ANITA DEVI Act.2015.03.16 16:16
I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 7
13. Before embarking upon merits of the case, Section 10-A and Section 18 of the Punjab Security of Land Tenures Act are reproduced here as under:-
"10-A: Surplus area for resettlement of ejectedly tenants---(a) The State Government or any officer empowered by it in this be half, shall be competent to utilize any surplus area for the resettlement of tenants ejected, or to be ejected, under clause(I) of sub section (1) of section 9.
(b) Notwithstanding anything contained in any other law for the time being in force {and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance] no transfer or other disposition of land which is comprised in surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a).
Explanation - Such utilization of any surplus area will not affect the right of the land-owner to receive rent from the tenant so settled.
(c) For the purposes of determining the surplus area of any person under this section. any judgement decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored. ANITA DEVI
18. Rights of certain tenants to purchase land - (1) 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 8 Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner -
(i) Who has been in continuous occupation of the land comprised in his tenancy for [ a minimum period of six years], or
(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together [ amounts to six years or more], or
(iii) who was ejected from his tenancy after the 14th day of August,1947 , and before the commencement of this Act, and who was in continuous occupation of the land, comprised in his tenancy for a period, [of six years or more immediately before his ejectment], Shall be entitled to purchase from the land owner the land so held by him but not included in the reserved area of the land-owner in the case of tenant falling within clause (I) or clause (ii) at any time, and in the case of tenant falling within clause (iii) within a period of one year from the date of commencement of this Act:
14. Provided that no tenant referred to in this sub- section shall be entitled to exercise any such right in respect of the land or ANITA DEVI any portion thereof if he had sublet the land or the portion, as the 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 9 case may be, to any other person during any period of his continuous occupation unless during that period the tenant was suffering from a legal disability or physical infirmity, or if a woman, was a widow or was unmarried :
Provided further that if the land intended to be purchased is held by another tenant who is entitled to pre-empt the sale under the next preceding section, and who is not accepted by the purchasing tenant, the tenant in actual occupation shall have the right to preempt the sale. (2) A tenant desirous of purchasing land under sub-
section (1) shall make an application in writing to an Assistant Collector of First Grade having jurisdiction over the land concerned. [----- ] and the Assistant Collector, after giving notice to the land -owner and to all other persons interested in the land and after making such inquiry as he thinks fit, shall 1[determine] the value of the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately proceeding the date on which the application is made. (3) The purchase price shall be three-fourths of the value of land as so determined.
(4) (a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
(b) On the purchase price or the first instalment thereof, ANITA DEVI as the case may be, being deposited, the tenant shall be 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 10 deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession and subject to the provisions of the Punjab Tenancy Act (XVI of 1887) put him in possession thereof.
(c) If a default is committed in the payment of any of the instalments, the entire outstanding balance shall, on application by the person entitled to receive it, be recoverable as arrears of land revenue.
(5) If the land is subject to a mortgage at the time of the purchase, the land shall pass to the tenant unencumbered by the mortgage, but the mortgage debt shall be a charge on the purchase money.
(6) If there is no such charge as aforesaid the Assistant Collector shall subject to any directions which he may receive from any court pay the purchase money to the land owner.
(7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debts so much of the purchase money as is required for that purpose and pay the balance if any to the landowner or retain the purchase money pending the decision of a civil court as to the person or persons entitled thereto."
15. The land was declared surplus in the hands of big land owner Anokhi Devi under the provisions of Punjab Security of Land ANITA DEVI Tenures Act in the year 1962-63. After the purchase, mutation was 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 11 also attested in favour of the plaintiff and till 1978, plaintiff remained in possession of the suit land. It was alleged that in the year 1978, defendant took forcible possession of the suit property. PW-2 Mukh Ram, Lambardar and Sarpanch of the village deposed in the aforesaid context that the plaintiff was in cultivating possession about 8-9 years back and defendant took forcible possession thereof. Jamabandi for the year 1976-77 also indicated the ownership of the plaintiff in the column of ownership and mutation No.184 (Ex.P-2) duly depicted the status of the plaintiff being transferee under the big land owner on account of order of purchase passed by the Assistant Collector, Ist Grade, Jagadhari, Ex.P-3, the rapat roznamcha No.163 dated 20.6.1972 also advanced the factum of purchase and delivery of 34 kanals 19 marlas of land to the plaintiff, wherein the suit land was also part thereof. Khasra girdawari from the year 1966 to 1971 (Ex.P-4 and Ex.P-5) indicated the status of the plaintiff being tenant gair marusi so as to advance his case for making him eligible for purchase in terms of Section 18 of the Punjab Security of Land Tenures Act. Plea of defendant No.1 was that the purchase being a collusive affair between close relative was the outcome of malafide in order to circumvent the provision of surplus law. The purchase was a collusive affair and was having effect of diminishing the surplus area of the big land owner. The land, which was declared surplus under the old Act stood vested in State of Haryana w.e.f. the appointed day free from all encumbrances under Section 12(3) of the Ceiling Act and thereafter, the State is the only competent authority to deal with ANITA DEVI the land in terms of re-settlement scheme framed under the Ceiling 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 12 Act. Defendant No.1 was rightly allotted the land in question under the scheme of the Act.
16. In order to appreciate the contention of defendant No.1, Sections 8, 12 (3) and Section 33 of the Ceiling Act are reproduced here as under:-
"-8. Certain transfers (or dispositions) not to affect surplus area:- (1) Save in the case of land acquired by the Union Government or the State Government under any law for the time being in force or by a tenant under the pepsu law or the Punjab law or by an heir by inheritance, no transfer or disposition of land in excess of-
(a) the permissible area under the Pepsu law or the Punjab law after the 30th day of July, 1958; and
(b) the permissible area under this Act, except a bona fide transfer, (or disposition) after the appointed day, shall affect the right of the State Government under the aforesaid Acts to the surplus area to which it would be entitled out for such transfer ( or disposition):
Provided that any person who has received an advantage under such transfer, (or disposition) of land shall be bound to restore it, or to pay compensation for it, to the person from whom he received it.
(2) The burden of proving the transfer (or disposition) to be a bona fide one shall be on the transfer.
(3) If any person transfers ( or disposes of) any land after ANITA DEVI the appointed day in contravention of the provisions of 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 13 sub-section (1), the land so transferred (or disposed of) shall be deemed to be owned or held by that person in calculating the permissible area. The land exceeding the permissible area so calculated shall be the surplus area of the person and in case the area left with him after such transfer (or disposition of) is equal to the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area. If the area left with him is less than the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area and to the extent of the deficiency in it the land so transferred (or disposed of) shall also be deemed to be the surplus area.
If there is more than one transferee, the deficiency of the surplus area shall be made up from each of the transferees in the promotion to the land transferred (or disposed of) to them.
12. VESTING OF SURPLUS AREA. -- (3) The area declared surplus or tenant's permissible area under the )r Punjab law and the area declared surplus under the Pepsu Law, which has not so far 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 under the Punjab Law or Pepsu Law after the appointed day shall be deemed to have vested in the State Government with effect from the ANITA DEVI date of such declaration.
2015.03.16 16:16I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 14
33. REPEAL AND SAVINGS.--(1) The provisions of the Punjab Security of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955, which are inconsistent with the provisions of this Act are hereby repealed.
(2) The repeal of the provisions of the enactments mentioned in subsection (1), hereinafter to as the said enactments, shall not affect --
(i) the applications for the purchase of land under Section 18 of the Punjab Law or Section 22 of the Pepsu Law, as the case may be pending immediately before the commencement of this Act, which shall be disposed of as if this Act had not been passed;
(ii) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under the provisions of either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in, and be utilised by the State Government in accordance with the provisions of this Act.
(iii) the revisional power of the Financial Commissioner under section 24 of the Punjab law or under sub-section (3) of Section 39 of the Pepsu Law, as the case may be, shall be exercised as if this Act had not been passed; and the area declared surplus in exercise of such revisional ANITA DEVI power shall vest in, and be utilised by, the State 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 15 Government in accordance with the provisions of this Act:
(iv) the power exercisable under section 5-C of the Punjab law or under section 32-88 of the Pepsu law, as the case may be, shall be exercised as if this Act had not been passed; and the area determined surplus in exercise of such power shall vest in, and be utilised by, the State Government in accordance with the provisions of this Act;
Provided that the powers of the Pepsu Land Commission under the Pepsu law shall vest in, and be exercised by, the Collector of the district concerned.
(3) Save as provided in sub-section (2), no authority shall pass an order if any proceedings whether instituted before or after the commencement of this Act which is inconsistent with the provisions of this Act"
17. Moot question, which is to be appreciated in the present controversy, is whether the transfer/ purchase made by the plaintiff vide order dated 23.3.1972 is protected or to be held to have the effect of diminishing or shrinking the surplus are of big land owner and thus, invalid. In the order dated 23.3.1972 passed by the Assistant Collector, Ist Grade Jagadhari case file No.161 has been shown. In the case, the plaintiff made a reference that the tenant was continuing in his possession for the last more than six years and to this effect, statement of officials from the office kanungo was also recorded who testified that the possession of the plaintiff over the suit ANITA DEVI land was continuing for the last more than six years as tenant under 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 16 the big land owner. The Assistant Collector, Ist Grade granted him permission to purchase the land subject to conditions formulated therein. The khasra girdawaris from the year 1966 to 1971 (Ex.P-4 and P-5) have been duly exhibited on record showing status of the plaintiff to be of tenant gair marusi for the period of six years preceding the date of purchase.
18. In the case of State of Punjab vs. Amar Singh and another 1974 PLJ 74, Hon'ble Apex Court, while interpreting Section 10-A (c ) of the Punjab Security of Land Tenures Act held that the order under Section 18 if diminishes the surplus are of landlord would be rendered invalid and cannot bind the State as the State is not party to such order. The Hon'ble Apex Court commented upon the post statutory collusive tenants, who are generally brought by the landlords themselves in order to circumvent the provisions of surplus law with a clear intention to save the land from surplus pool. The entitlement of a person under Section 18 of the Punjab Security of Land Tenures Act is that he must be a tenant i.e. a person lawfully inducted on the land as a tenant. Once the land is held to be a part of surplus land of a big land owner, then it rests with the State Government for being disposed of for the re-settlement of tenants and any disposition of the same by the landlord after 15.4.1953 would be invalid against the State Government's claims to dispose of it. Section 10-A (a) and (b) of the Punjab Security of Land Tenures Act. The person inducted by the landlord after 15.4.1953 would have no title to the land as a tenant and the requirement of Section 10-A (c ) has to be tested vis-à-vis the status of such person and if the ANITA DEVI 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 17 purchase in question shrinks the surplus are of land owner then it has to be ignored.
19. In Jaswant Kaur and another vs. State of Haryana and another 1977 PLJ 230, Full Bench of this Court held that Section 8 of the Ceiling Act has not been repealed expressly by Section 12 (3 ) of the Act, nor it was repealed by necessary implication. A harmonious way of construction of the provision was propounded on the subject that Sections 8 and 12 (3) of the Ceiling Act should be harmonised in such a way that Section 8 (1) of the Ceiling Act should be given full effect up to 23.12.1972, that is to exclude from the operation of Section 12 (3) , the transfers made up to 23.12.1972 which are protected by Section 8 (1) of the Ceiling Act namely,(1) acquisition of land by the State or the Central Government,(2) acquisition by a tenant under the Pepsu Law or the Punjab Law,(3) acquisition by an heir by inheritance. Other transfers of land in excess of permissible area under the Punjab Law or the Pepsu Law would be protected if the transfers were made prior to 30.7.1958.
20. In the instant case the order of purchase under Section 18 of the Punjab Security of Land Tenures Act came into being between the period i.e. 24.1.1971 i.e. the appointed day and 23.12.1972, the date on which the Act came into being. Section 12 (3) of the Ceiling Act prescribes that the land declared under the Punjab Security of Land Tenures Act which has not so far vested in the State shall be deemed to have vested in the State Government w.e.f. the appointed day. Under the aforesaid provision, vesting of surplus area so declared under the Punjab Security of Land Tenures ANITA DEVI 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 18 Act would be vested in the State Government w.e.f. 24.1.1971 i.e. the appointed day. Exemption in terms of Section 8 (1) of the Ceiling Act is to be honoured and to be given effect in respect of transfers made up to 23.12.1972. In view of aforesaid, Section 33 of the Ceiling Act would be having its own say. According to repeal and saving clause of the said Act in terms of Section 33 (2) (i) the applications for the purpose of land under Section 18 of the Punjab Law if pending immediately before commencement of the Act were required to be disposed of under the old Act. Though, no specific date of filing of the application under Section 18 of the old Act is forthcoming but the State being party to the civil suit did not bring the date of filing of application on record. Having contested the suit and lost before the trial Court the State did not opt to contest the case any further.
Therefore, the order of purchase dated 23.3.1972 would be taken to have been passed on the application which was pending before the authority at the time of commencement of the Ceiling Act. The order dated 23.3.1972 (Ex.P-8) was not challenged by any one even after coming to know about the same. Nothing has been placed on record to show that the said order was obtained by way of any deceitful means or collusive in nature. Revenue record viz. khasra girdawari from the year 1966 up to 1971 were produced on record to show the entitlement of the plaintiff being in possession as gair marusi tenant for the last more than six years and the purchase proceedings were duly witnessed by the officials of the revenue department.
21. The observations made in Amar Singh's case (supra) in the context of area having the effect of diminishing nature on the ANITA DEVI 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 19 surplus area of landlord cannot be squarely applied inasmuch as that, firstly the surplus area itself was declared subsequent to 1953; secondly, the purchase made by the plaintiff was not proved to be collusive and thirdly, the claim of the State Government has not come forth despite the state being defendant No.2 in the suit and has contested the suit upto the stage of trial Court. The State has allowed the judgments and decrees passed by the Courts below to become final for want of any challenge made by the State of Haryana to stake the claim for resettlement of tenant on the ground of its being surplus land. Since the State has allotted the land to defendant No.1 and did not take any step to question the entitlement of plaintiff as tenant and his entitlement for want of compliance of rule 18, 20 (a) (b) ( c) and (d) of the Punjab Security of Land Tenures Rules 1956, therefore defendant/ appellant cannot take any benefit out of it.
22. In view of aforesaid, question No.1 is decided in negative as the purchase made by the plaintiff is fully protected in terms of Section 8 (1) of the Ceiling Act and was legally required to be given effect up to 24.12.1972.
23. Plaintiff has been able to prove cogent evidence both oral and documentary on record to show that his possession was more than six years over the land in the capacity of gair marusi and, therefore, he was entitled to purchase this land under Section 18 of the Punjab Security of Land Tenures Act. The defendants could not adduce any evidence on record. Even the State of Haryana could not ANITA DEVI adduce any evidence in the form of any disability on the part of the 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 20 plaintiff in terms of the Punjab Security of Land Tenures Rules that he was not entitled to purchase the land in any manner. Therefore, question No.2 is also answered in favour of the plaintiff and the plaintiff was legally entitled to purchase the land.
24. Question No.3 is also answered in favour of the plaintiff inasmuch as that the claim of State of Haryana cannot be considered even if the land stood vested in the State w.e.f. the appointed day I.e. 24.1.1971 but as per the exemption clause i.e. Section 8 (1) of the Ceiling Act, the transfer dated 23.3.1972 i.e. acquisition by tenant under the Punjab Security of Land Tenures Act has to be given effect up to 23.12.1972 in view of harmonious construction of both the provisions of Section 18 (1) and 12 (3) of the Ceiling Act given in Jaswant Kaur's case (supra). Therefore, question No.3 is also answered in favour of the plaintiff and purchase under Section 18 of the Punjab Security of Land Tenures Act is protected.
25. In view of interpretation of Section 8 (1) and 12 (3) of the Ceiling Act, even if the land declared surplus under the old Act vests in the State of Haryana w.e.f. the appointed day transfer of acquisition by tenant under the Punjab Law has to be given effect upto 24.12.1972. Since the acquisition in question by tenant came into existence on 23.3.1972, therefore, the same is protected. Accordingly, question No.4 is also decided in favour of the plaintiff.
26. The argument raised by learned counsel for the appellant vis-à-vis the ineligibility of the plaintiff to purchase the land in question having inducted after 15.4.1953 cannot be appreciated. ANITA DEVI There is no parallel provision in the Ceiling Act to that of Section 10 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh R.S.A.No. 1996 of 1990 21
(a) (b) and (c ) of the Punjab Security of Land Tenures Act under which the Collector could ignore the earlier purchase order passed in favour of tenant under Section 18 of the old Act. Since the plaintiff was in cultivating possession prior to 23.3.1972 as tenant and also qualified the requisite requirement/ condition to claim his entitlement under Section 18 of Punjab Security of Land Tenures Act, therefore, he cannot be held to be ineligible by any stretch of imagination as requirements under Section 18 of the Punjab Security of Land Tenures Act were duly fulfilled. The tenant, even if inducted after 15.4.1953, the ratio applied in Amar Singh's case (supra) was not universally applied to that effect that every transfer after the year 1953 must be ignored . Rather in para 24 of the said judgment, the position has been clarified in the context of eligibility based on continuous occupation for a period of six years prior to making application. Jaswant Kaur's case (supra) has also been affirmed by the Hon'ble Apext Act and by virtue of harmonious construction between Section 8 and 12 (3) of the Ceiling Act, the acquisition of tenant in the form of purchase on 23.2.1972 is legally required to be protected and to be given effect up till 24.12.1972. Therefore, having deliberated upon the aforesaid issues, this Court finds that no law point worth cognizance is involved in the present appeal and the appeal being totally devoid of merits is dismissed as such.
(RAJ MOHAN SINGH) JUDGE March 11, 2015 anita ANITA DEVI 2015.03.16 16:16 I attest to the accuracy and integrity of this document Chandigarh