Punjab-Haryana High Court
Mohd. Ashraf Khan Lr. Balqueesh ... vs Sufi Mohd. Ibrahim And Ors on 21 March, 2022
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA 4539 of 2011 (O&M)
Date of Decision: March 21, 2022
1. Mohd. Ashraf Khan ...Appellant
Versus
Sufi Mohd. Ibrahim and others
... Respondents
RSA 4546 of 2011 (O&M)
2. Mohd. Ashraf Khan LR of Balqeesh Begum ... Appellant
Vs.
State of Punjab and others ...Respondents
CORAM : HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present : Mr. Rajinder Goyal, Advocate
for the appellant in RSA 4546 of 2011.
Mr. Arun Jain, Advocate
for the appellant in RSA 4539 of 2011.
Mr. Harsh Aggarwal, Advocate
for respondent No. 1 in RSA 4539 of 2011 and
for respondent No. 4 in RSA 4546 of 2011.
Mr. Aditya Sharda, AAG, Punjab
for respondents No. 2 and 3/State in RSA 4539 of
2011 and for respondents No. 1 and 2/State in RSA
4546 of 2011.
None for respondent No. 3 in RSA 4546 of 2011 and
for respondent No.4 in RSA No. 4539 of 2011.
1 of 12
::: Downloaded on - 07-07-2022 03:05:35 :::
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 2
FATEH DEEP SINGH, J. (Oral)
Then plaintiff Balqeesh Begum preferred against
State of Punjab and others a suit for declaration etc. The claim
of the plaintiff was that she belongs to the family of Ajube Khan
and that the suit land as per the jamabandi pertaining to the
year 1925-26 measuring 19 bighas 19 biswa 'gair mumkin
theh' and No. 5662 measuring 19 biswas comprised of 'Kotha'
and 'Chah' for drinking water and which property was equally
owned by Nawab Khan and Sajjawal Khan. It is alleged that
during preparation of the records in the year 1944-45 Khasra
No. 7408 measuring 19 bighas 19 biswas and Khasra No. 7409
measuring 19 biswas which was owned and possessed by
Nawab Khan @ Babu, grand father of the plaintiff to the extent
of ½ share, the numbers were changed.
It is alleged that upon death of Sajjawal Khan one of
the co-sharer his widow Hussana Begum subsequently also
died and was succeeded by Nawan Khan @ Babu Khan who
happened to be the grand father of the plaintiff in whose name
2 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 3
the mutation was sanctioned on 07.06.1929. It is worthwhile to
mention here that as per the pleadings Nawab Khan was
succeeded upon his death by sons Abdul Gafoor Khan @ Nathu
and Rafiq Khan and mutation No. 2778 dated 24.08.1953 was
sanctioned. Upon death of both these persons Ruqia Begum
widow of Abdul Gafoor Khan @ Nathu became the sole legal
heir who was not bestowed with any issue. The plaintiff claimed
to be the daughter of Ruqia Begum and upon her death claims
to have inherited the estate. Another property owned by Abdul
Gafoor Khan and Rafiq Khan in village Dhano, Tehsil Malerkotla
inherited by the plaintiff vide mutation Nos. 13146 and 13147
and 13157. It is against the act of the respondent Custodian
Sub Urban Area in the jamabandi for the year 1959-60, one
Khaira Shah Fakir was shown as tenant and the property was
shown to be a evacuee property. It is precisely this dispute
which has led to the institution of the present suit challenging
this act of the respondents/State.
The official respondents in their response took the
3 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 4
plea that the Civil Court was not vested with the jurisdiction.
Being a evacuee property terming that the suit is barred by
limitation, non-joinder of necessary parties and denied the
averments of the plaint sought the dismissal of the suit.
However, co-proforma defendants supported the case of the
plaintiff.
The trial Court framed the following issues:-
1. Whether the plaintiff is entitled to declaration
prayed for? OPP.
2. Whether the plaintiff is entitled to injunction and
possession prayed for? OPP.
3. Whether the plaintiff has got no locus standi to file
the instant suit? OPD.
4. Whether the instant suit is not maintainable? OPD
5. Whether the plaintiff has got no cause of action to
file the instant suit? OPD.
6. Whether the instant suit is bad for non joinder of
necessary parties? OPD.
4 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 5
7. Whether this Court has got no jurisdiction to try the
suit? OPD.
8. Relief.
Plaintiff examined Riaq Khan as PW1, Ashraf Ali
Khan as PW2, Sham Lal document writer as PW3, Mohd. Munir
as PW4, Harpal Singh as PW5, Manjit Singh as PW6 and
Pandit Girsh Parshad as PW7 and closed the evidence. While,
the defendant side examined Amit thind as DW1 and defendant
No. 4 Sufi Mohd. Ibrahim examined as DW2 and thereafter
closed the evidence.
The Court of learned Civil Judge (Junior Division)
Malerkotla vide judgment dated 27.03.2002 decreed the suit of
the plaintiff holding that the plaintiff was the owner of the suit
land in which the defendants have no right, title or interest.
The State challenged the same before the learned
Court of Additional District Judge, Sangrur who vide impugned
findings dated 02.08.2011 accepted the appeal and set aside
the findings of the trial Court.
5 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 6
It is against these findings, the present two regular
second appeals by Mohd. Ashraf Khan legal heir of Balqeesh
Begum have come about. Since both these appeals have arisen
out of the common judgment and decree and therefore are
being disposed off together by this common judgment.
Heard learned counsel for the parties and perused
the records.
In the light of admitted legal proposition as has been
laid down in 'Kirodi (since deceased) through his L.R. Vs.
Ram Parkash and others' Civil Appeal No. 4988 of 2019;
SLP(C) No. 11527 of 2019 decided on 10.05.2019, the Court is
not supposed to frame substantial question of law in view of the
provisions enshrined under Section 41 of the Punjab Courts Act,
1918 which has its application to the States of Punjab and
Haryana.
It is well established on the records through the
evidence of the witnesses that plaintiff Balqeesh Bequm
happens to be the daughter of Abdul Gafoor @ Nathu Khan son
6 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 7
of Nawab Khan. It is also not put to question that Balqeesh
Begum died on 22.11.1995 and has been represented by her
legal heir Mohd. Ashraf Khan on the basis of Will dated
31.01.1994. Jamabandi pertaining to year 1925-26 shows that
Khasra No. 5662 measuring 19 bighas and 19 biswas 'gair
mumkin theh' comprised of 'Kotha' and 'Chah' for drinking
water both owned in equal shares by Nawab Khan and Sajjawal
Khan. It is also well established on the records of rights
prepared in the year 1944 the khasra numbers were changed to
7408 and 7409. It is on the basis of mutation No. 116 dated
07.06.1929, ½ share of Sajjawal Khan who had died was
succeeded by his widow Hussana Begum and after her death
by Nawab Khan @ Babu Khan (grand father of the plaintiff).
Counsel for the two sides did not put to question that
upon death of Nawab Khan @ Babu Khan Mutation No. 2778
was sanctioned in favour of his sons namely Abdul Gafoor Khan
@ Nathu and Rafiq Khan who both died issueless leaving
behind Ruqia Begum widow of Abdul Gafoor Khan @ Nathu
7 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 8
being the sole legal heir and after death of Ruqia Begum, her
lone daughter and legal heir Balqeesh Begum plaintiff inherited
her estate and this became the owner of the suit land.
To corroborate the factum of inheritance of Abdul
Gafoor Khan @ Nathu his property in village Dhano, Tehsil
Malerkotla was also inherited by Ruqia Begum his widow
through mutation No. 1100 dated 06.03.1979 and which was
inherited subsequently by Balqeesh Begum daughter who
happens to be the plaintiff upon death of Ruqia Begum by
another quirk of fate that Abdul Gafoor Khan @ Nathu and
Ragiq Khan who owned another property in Malerkotla after
their death and that of Ruqia Begum was also inherited by the
plaintiff for which mutation No. 13146, 13147 and 13157 were
also sanctioned and which have never been displaced during
the submissions of the counsel. The moot point that has come
about is as to the the nature of the property, the official
defendants claimed it to be a custodian evacuee property and
for which reliance is placed on Haji Siddik Haji Umar and
8 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 9
others Vs. Union of India 1983 AIR (Supreme Court) 259
and Sowarn Dai Vs. Puran Chand 2011 (4) PLR 224 to bring
home the point that the very question challenging the
determination of evacuee property is beyond the jurisdiction of
the civil court and has placed reliance on the provisions of
Administration of Evacuee Property Act, 1950 (in short, 'the
Act') as well as the Displaced Persons (Compensation and
Rehabilitation Act, 1954). The same is opposed by Mr. Rajender
Goyal, learned counsel for the appellant claiming that there is
no declaration under Section 7 of the Act for declaring the
properties to be the evacuee property. No doubt, under the
provisions of Administration of Evacuee Property Act, 1950,
question as to whether a property is an evacuee property is
beyond the decision of the civil court and the jurisdiction if any
vests with the custodian general.
The defendants in their written statement invariably
accepted the fact inter se relationship of Ruqia Begum widow of
Abdul Gafoor Khan @ Nathu and plaintiff Balqeesh Begum their
9 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 10
daughter. How the suit land was declared as evacuee property
by a stray entry in the jamabandi for the year 1988-89 when the
earlier documents were otherwise could not be satisfactorily
rebutted by the counsel for the official State. The Will in favour
of the plaintiff dated 31.01.1994 has been well established by
Sham Lal, Document Writer and PW4 attesting witness and the
relationship of the plaintiffs are well deposed by PW1 Riaq
Khan. The revenue record is brought on the records by none
other than the official of the respondent PW4 Harpal Singh
Patwari and PW6 Manjit Singh Clerk and PW7 Pandit Girsh
Parshad Ex- Patwari who translated jamabandi for the year
1925-26 from Urdu to Punabi and documents have been proved
in the statement of plaintiff Ex.P6 to P-44. When posed with the
question on the veracity of the claim of the official defendants
the stand of DW1 Amit Thind Tehsildar Malerkotla who claims
that suit property was declared as evacuee in jamabandi for the
year 1988-1989 to the specific query of the Court that what
process has been adopted in terms of Section 7(A) and 7 of the
10 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 11
Administration of Evacuee Property Act, 1950, the counsel was
clearly at loss of words. The defendants have taken this plea
that it was subsequently in the year 1988-89, the property was
declared as evacuee property and therefore the onus lay
heavily upon these defendants to establish so in terms of
Sections 101 and 106 of the Indian Evidence Act which they
have failed to displace. How the property has been declared as
an evacuee property and thus bars the jurisdiction of the Civil
Court could not be satisfactorily answered by the respondents
and therefore in view of law cited by the respondents of the
Apex Court in Dr. Rajendera Prakash Sharma Vs. Gyan
Chandra and others 1980 AIR (Supreme Court) 1206,
jurisdiction of the civil court to go into the very finality of question
of the status of the property under the the Displaced Persons
(Compensation and Rehabilitation Act, 1954) cannot be ousted,
where further reliance reliance was placed on the Full Bench
view of the Allahabad High Court in Khalil Ahmad Khan Vs.
Malka Mehar Nigar Begum, AIR 1954 Allahabad 362. The
11 of 12
RSA 4539 of 2011 (O&M) and RSA 4546 of 2011 (O&M) 12
learned trial Court has rightly appreciated the evidence oral and
documentary and had come to a justifiable conclusion that the
plaintiff happens to be the owner in possession of the suit land
to which the defendants No. 1 to 3 have no concern.
The learned first Appellate Court has fell into an
error by misconstruing the evidence as is elucidated from para
46 of the impugned judgment under challenge. The findings of
the learned trial Court being wholly legal and valid needs to be
upheld. The impugned findings rendered by the first appellate
Court suffers from serious legal infirmity needs to be set aside
by way of acceptance of the appeals.
March 21, 2022 (FATEH DEEP SINGH)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
12 of 12
