Punjab-Haryana High Court
Manjit Kaur vs State Of Punjab And Others on 28 November, 2013
Author: G.S.Sandhawalia
Bench: Jasbir Singh, G.S.Sandhawalia
LPA No.1996 of 2013 (O&M) -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1996 of 2013(O&M)
Date of decision: 28.11.2013
Manjit Kaur .Appellant
Vs.
State of Punjab and others
.Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
*****
Present: Mr. Sunil Chadha, Advocate for the appellant.
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G.S.SANDHAWALIA, J.
1. The short question that arises in the present Letters Patent Appeal is that whether the Executing Court was justified in taking into subsequent events and issuing warrants of possession only for 43 kanals 15 marlas instead of 123 kanals 1 marlas of land.
2. The present appeal is directed against the judgment of the learned Single Judge passed in Civil Writ Petition no.22877 of 2013 which was filed by the present appellant challenging the order dated 11.2.2013 whereby her application for impleadment in appeal filed in execution proceedings was rejected by the Commissioner on the ground that she was not a party to the original ejectment order dated 31.12.1999 and had purchased the land subsequently from a person who was a tenant in the disputed land. Challenge has also been laid in the writ petition to the order dated 2.9.2013 whereby order of the Commissioner Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -2- ***** was upheld by the Financial Commissioner on the ground that petitioner could not be allowed to agitate the matter being a subsequent vendee.
3. Counsel for the appellant has vehemently submitted that the mutation had been carried out in favour of the Prithipal Singh the owner of the land on 27.5.2003 which was set aside on 28.7.2003 at the behest of Pavitar Singh and upheld in a revision petition by the Financial Commissioner. Pavitar Singh had sold 79 kanals 6 marlas of land on 22.4.2009 to one Mohinder Singh who had further sold the said land to the appellant on 10.6.2009. Accordingly, it was contended that she was a necessary party to the lis and the authorities below went wrong in rejecting her application for impleadment filed before the Appellate Authorities in executing proceedings.
5. The present case is a classic example that how a non resident Indian is being entangled in litigation firstly by his tenants, who firstly sold his property and thereafter entered into a compromise and continued to hold possession and then got injunction from Civil Court in their favour to deny possession to the original owner and eventually sold the property to the present appellant who is now wanting to set up a legal right and raise the defence of a bonafide purchaser. To adjudicate on the legal issue, it is necessary to briefly refer to the facts. Respondent No.3 Prithipal Singh admittedly is a resident of Hong Kong and had leased out the land in question to Pavitar Singh and Ganga Singh who on the basis of forged power of attorney executed the sale deeds in favour of Pavitar Singh on 10.12.1995, 21.12.1995 and 29.12.1995. In suit filed by Prithipal Singh challenging the said sale Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -3- ***** deeds, a compromise was effected on 1.3.1997 wherein the tenants were to keep the land and maintain accounts and Pavitar Singh was to execute sale deed in favour of Prithipal Singh and to rectify the concerned papers. Both the parties put their signatures to the said compromise but unfortunately the trial Court instead of decreeing the suit in the Lok Adalat dismissed the same in view of the compromise though noting that the case was decided as per compromise. Pavitar Singh, who had expired on 5.4.2010, however, taking the advantage of lacuna on account of the fact that the decree mentioned that the suit had been dismissed did not execute the sale deed in favour of Prithipal Singh which led to Prithipal Singh filing for eviction proceedings against him under the Punjab Security of Land Tenures Act, 1953 on account of non payment of lease money from the year 1994 onwards. The Assistant Collector after examining the compromise directed ejectment of respondent-Pavitar Singh with immediate effect on 31.12.1999. The said order reads as under:-
"In this way the respondent is estopped to xxx of his title in view of the order dated 1.3.1997 Smt. Ramesh Kumari, Civil Judge, Tarn Taran as he is in possession of the suit land on Theka under the ownership of the applicant. The authority 1979(1) Civil Court Cases Page 135 also support this case. In the present case admission of Pavitar Singh respondent on the basis of compromise Ex. C1 executed in the Civil Court can be used in this case. I fully agree with authorities referred by the counsel of the applicant in his convincing arguments. Under these circumstances the Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -4- ***** disputed land is in unauthorised possession of the respondent since Hari 1994-95 and he has not paid the Theka to the applicant and surrender possession to the applicant in terms of compromise Ex. CJ. The respondent is cultivating the disputed land as unauthorised tenant. So, I accept the application and eject the respondent from the disputed land with immediate effect. The file be consigned to record room, Amritsar."
6. The said order was upheld in appeal and revision vide orders dated 22.2.2000 and 23.1.2002 respectively. Pavitar Singh then filed a suit for permanent injunction in the Court of Civil Judge (Sr. Division), Tarn Taran and was successful in getting injunction on the strength of the same sale deeds on 21.4.2005. Respondent no.3 Prithipal Singh was unsuccessful in appeal and his appeal was dismissed on 25.11.2009. Respondent no.3 Prithipal Singh in the meantime filed execution application which was adjourned sine die due to pendency of civil dispute interse the parties and after the decision, he filed a fresh execution application on 8.3.2011 for the land measuring 123 kanals 1 marla. The Collector in view of the decision of the Civil Court issued warrants only for 43 kanals 15 marlas of land and dismissed the execution qua 79 kanals 6 marals of land vide order dated 2.5.2011 (Annexure P-10) against Pavitar Singh who had in the meantime expired and sold the land to Mohinder Singh on 22.4.2009 who had further sold the land to the present appellant on 10.6.2009. Respondent no.3 filed an appeal before the Commissioner against the partial issuance of warrants in which the appellant filed an application for Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -5- ***** being impleaded on the ground that she had purchased the land and she was in physical possession. The Commissioner dismissed the application for impleadment on 11.2.2013 and accepted the appeal and ordered ejectment from whole of the land by noticing that Pavitar Singh was a tenant in the disputed land. Relevant portion of the order reads as under:-
"I have considered the arguments advanced by the ld. Counsel for the appellant and have also minutely perused the orders placed on record. The respondent Pavitar Singh was firstly ejected by the A.C. Ist Grade cum SDM Tarn Taran vide his order dated 31.12.1999 from the land measuring 123 kanals 1 marla. Against this order the present respondent filed an appeal before the Collector cum ADC, Amritsar who also vide his order dated 22.2.2000 dismissed the appeal of respondent Pavitar Singh. Against these orders Pavitar Singh filed revision petition before the Commissioner, Jalandhar Division, Jalandhar, who after discussing the merits of the case dismissed the petition vide his measuring 79 kanals 6 Marlas, which was sold by Ganga Singh to Pavitar Singh would amount to violation of civil court order dated 1.3.1997, which was passed by Smt. Ramesh Kumari, PCS, Civil Judge (Jr. Division) because he was a tenant in the land in dispute. If, Mohinder Singh had purchased the land from Pavitar Singh and had further sold to Manjit Kaur w/o Sarwan Singh, Tejinder Pal Singh s/o Sarwan Singh etc. as alleged in the application filed by Sh.
Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -6- ***** R.L.Aggarwal for impleading them as party, they cannot become the owner of the land as the respondent Pavitar Singh was also tenant in the disputed land. So, the appeal is accepted and the application for impleading them as party filed through Sh. R.L.Aggarwal is hereby dismissed."
7. The said order was further upheld by the Financial Commissioner (Appeals) on 2.9.2013 by holding that Pavitar Singh was merely a tenant who could not sell the land and compromise had been arrived at that he would re-execute the sale deed in favour of Prithipal Singh and the present appellant was never a party before the revenue Court or the Civil Court and being subsequent vendee could not be allowed to agitate the issue. Relevant portion of the said order reads as under:-
"After hearing both counsel for both the parties, I have reached to the conclusion that petitioner was neither party before AC-I Grade nor before Commissioner, Jalandhar Division, Jalandhar in the first round of litigation. Their claim that they purchased the land on 22.4.2009, 10.6.2009 from Mohinder Singh does not stand correct in the eyes of law as Pavitar Singh was a tenant on the land in dispute. If he was not an owner of the land in dispute, how could he sell land to any other person? Besides this, it has been admitted by Pavitar Singh that he was a tenant of Prithipal Singh. As per judgment dated 1.3.97 passed by Civil Judge (Junior Division) Tarn Taran, Pavitar Singh had admitted that sale deeds in his favour were wrongly executed by Ganga Singh Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -7- ***** to whom Prithipal Singh gave the land in dispute for cultivation and it was said by Pavitar Singh that he would re- execute the sale deeds in favour of Prithipal Singh and would continue cultivating the land as tenant only. This clearly shows that Pavitar Singh was a tenant on the land in dispute. The main issue was ejectment of Pavitar Singh from the land in question. The petitioner was never a party before any lower revenue authority or before civil Court. The petitioner cannot be allowed to agitate the matter at this level. It was the utmost duty of the petitioner to verify the status of the land in dispute. Being subsequent vendee the rule of buyer emptor applies to the petitioner. Accordingly, the revision petition is dismissed being devoid of merits. The interim stay granted by this court is vacated.
Counsel for both the parties to be communicated."
8. Thus, from the above narration of facts, it would be clear that when the eviction of Pavitar Singh was ordered on 31.12.1999 (Annexure P-8) from whole of the land in dispute, he was unsuccessful in getting the said order set aside as it was upheld in appeal on 22.2.2000 and in revision on 23.1.2002. In order to avoid the execution proceedings, he then cleverly filed a civil suit for permanent injunction and entangled the land lord in litigation and was successful in getting injunction in his favour on 21.4.2005 which was upheld by the Appellate Court. Unfortunately the Civil Court at that stage failed to see the necessary effect of the compromise which had been effected between the parties and how the process of law was being misused by Pavitar Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -8- ***** Singh. After getting the decree in his favour on 21.4.2005 he sold the property to Mohinder Singh who further sold it to the present appellant on 10.6.2009 further complicating the matter for the landlord. The Executing Court wrongly placed reliance upon the Civil Court decree while issuing warrants of possession only for 43 kanals 15 marlas and did not realise that it was only to execute the order of eviction dated 31.12.1999 which has been reproduced above in paragraph 5 whereby eviction had been ordered from whole of the land and the said order had attained finality interse the parties. The said suit was otherwise also only a suit for permanent injunction and the said fact was also observed by the trial Court while decreeing the suit. The Collector has rightly dismissed the application for impleadment filed by the present appellant by giving valid reason that Pavitar Singh was a tenant and could not have sold the property which was upheld by the Financial Commissioner on 2.9.2013 on the ground that the appellant was never a party before the revenue Court and the Civil Court earlier. The learned Single Judge also examined the issue threadbare and came to the conclusion that Pavitar Singh could not have sold the land to Mohinder Singh who had further sold it to the present appellant as he never had title to the property. Relevant portion of the order dated 18.11.2013 passed by the learned Single Judge reads as under:-
"It is not disputed by anyone that land measuring 79 kanals 6 marla was owned by respondent No.3/Prithipal Singh, who is a resident of Hong Kong. Both Ganga Singh and Pavitar Singh were in occupation of the disputed land as tenants. It is the case of respondent No.3 that Ganga Singh forged Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -9- ***** general power of attorney dated 9.10.1995 on the basis of which he sold the land by way of three sale deeds dated 10.12.1995, 21.12.1995 and 29.12.1995 to Pavitar Singh. As soon as, respondent No.3 came to know about the sale, he filed civil suit No.348/1996 in which a compromise between the parties was effected on 1.3.1997 and it was decided that Pavitar Singh would re-execute sale deeds in favour of respondent No.3 and would also cooperate in straitening the revenue record but both Pavitar Singh and Ganga Singh would continue to cultivate the land in dispute and maintain the record. The Civil Suit was taken up before the Lok Adalat where the compromise was placed on record as Ex.C-1 and on the same day after recording the statements of the parties about the terms and conditions of the compromise, the suit was dismissed in view of the compromise. Taking advantage of the dismissal of the suit, it appears that Pavitar Singh became totally dishonest and sold the land in dispute to one Mohinder Singh on 22.4.2009 who further sold it to Manjit Kaur (present petitioner) though earlier thereto respondent No.3 had initiated the proceedings of eviction of Pavitar Singh in which he thoroughly succeeded but when application for taking possession by way of execution was filed, the Collector committed a mistake on the ground that in suit for permanent injunction filed by Pavitar Singh a finding has been recorded that he has become the owner of the Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -10- ***** property in dispute being a bona fide purchaser. It is worthwhile to mention that in the case of Gurpreet Singh (Supra) it was held by the Supreme Court that a compromise must be in writing and signed by the parties.
The compromise in the present case is also in writing and signed by the parties. The compromise is also made part of the record of the Civil Suit as Ex.C-1, in terms of which the statement is also suffered by both the parties. Inasmuch as Pavitar Singh had stated that the compromise bears his signatures and the suit be decided as per its terms and conditions, it is altogether a different matter that the learned Civil Judge instead of disposing of the suit in terms of compromise used the word 'dismissal'. In this regard, it has been held by this Court in the case of Vishwa Mitter and others (Supra) that the Civil Court which was seized of the suit ending in a compromise, would have been well advised to pass a decree in terms of the compromise, but presumably under a mistaken advice or lack of proper understanding of the correct legal provisions, it dismissed the suit as having been compromised. Dismissal of the suit does not invalidate the compromise, but the compromise arrived at between the parties could be enforced and the Court should lean in favour of implementing it and preventing the parties from impinging it.
In the case of Bikram Singh (Supra) it has been held that the Court recorded a statement of a party and proceeds Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -11- ***** to render a judgment on the basis of such a statement. Similarly, in the case of Kundan (Supra) it has been held that a party cannot be allowed to withdraw the offer after it has been accepted unless it gives adequate reasons and the Court permits it to do so.
In the present case, the suit of respondent No.3 for declaration could have been even decreed had compromise been not effected between the parties as both Ganga Singh and Pavitar Singh, who wanted to continue to cultivate land of respondent No.3, who is an absentee landowner, accepted the mistake committed by both of them by executing bogus power of attorney and further selling the land in dispute on the basis thereof. It all happened because of the reason that Pavitar Singh later became dishonest, greedy and did not honour the commitment made by him before the Civil Court by way of compromise and when he was evicted on the application filed by respondent No.3 under the provisions of the Act, he sold the land in dispute to the other parties which includes the present petitioner. It is well settled that a person cannot transfer the title which he does not possess and on that analogy, once compromise was effected between the parties as per which Pavitar Singh had to re-execute the sale deed in favour of respondent No.3, the sale deeds executed by Pavitar Singh in favour of Mohinder Singh is legally unjustified and further sale by Mohinder Singh in favour of Manjit Kaur (present petitioner) Kumar Pardeep 2013.12.19 10:37 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1996 of 2013 (O&M) -12- ***** also falls in the same definition.
Thus, in view of the aforesaid discussion, I do not find any merit in the present writ petition and hence, the same is hereby dismissed."
9. After examining the issue threadbare, we do not agree with the argument raised by the counsel for the appellant that the appellant was entitled to be impleaded as a party in appeal in the execution proceedings as admittedly she was never a party in the eviction proceedings and the Executing Court was merely to comply with the ejectment order passed interse the parties regarding the land in question and was not to take into consideration the subsequent events.
10. Accordingly, we hold that the Executing Court was not justified in ordering partial ejectment and placing reliance upon the subsequent decree between the landlord and tenant. Accordingly, keeping in view the above facts and circumstances, aforesaid question is answered against the appellant and we dismiss the present appeal with no order as to costs since the same has been dismissed in limine.
(G.S.SANDHAWALIA)
JUDGE
28.11.2013 (JASBIR SINGH)
Pka JUDGE
Kumar Pardeep
2013.12.19 10:37
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh