Punjab-Haryana High Court
(O&M) State Of Haryana & Others vs Jaswant Singh & Others on 2 April, 2024
Neutral Citation No:=2024:PHHC:044985
RSA No.326 of 1992 (O&M) 2024:PHHC:044985
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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RSA No.326 of 1992 (O&M)
Reserved on: 11.03.2024
Pronounced on: 02.04.2024
State of Haryana and another .....Appellants
Vs.
Jaswant Singh and others .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Parveen Kumar Aggarwal, DAG, Haryana.
Mr. Amit Jain, Senior Advocate with Mr. Varun Parkash,
Advocate for respondents No.1 and 2.
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DEEPAK GUPTA, J.
Civil suit bearing No.623 of 1991 for declaration and permanent
injunction regarding land in dispute, as filed by the plaintiffs (respondents
herein) was dismissed by the trial Court on 11.11.1988. The appeal preferred
by them i.e., plaintiffs bearing CA No.85 of 1988 was accepted and
consequent thereto, the suit was decreed by the First Appellate Court vide
judgment dated 13.09.1991. Thus, the present Regular Second Appeal has
been filed by the defendants (appellants herein) against the judgment dated
13.09.1991 of the First Appellate Court, decreeing the suit of the plaintiffs.
2. The trial Court record was called. The same has been perused.
In order to avoid confusion, parties shall be referred as per their status before
the trial Court.
3.1 The land in dispute is 13 kanal 12 marlas, situated within the
revenue estates of Village Raipur Kalan, Tehsil Ballabgarh (Haryana)
detailed and described in para No.1 of the plaint. Plaintiffs claimed to be in
possession of the said land for the last more than 100 years as Ghair
Maurusee Kuzaran, since the time of their ancestors. According to them,
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original owners of the suit land were Mohammadans, who had given the
land to the forefathers of the plaintiffs on rent and the terms and conditions
as recorded in record of rights was "Bila Laggan Malkan Bawjahah Derina
Kast".
3.2 As per plaintiffs, they and before them, their forefathers had
been paying only the land revenue and other taxes regarding the suit land
and that with the passage of time, they acquired occupancy rights in the suit
land by virtue of Sections 5, 6 and 8 of the Punjab Tenancy Act, 1887. It was
further pleaded by the plaintiffs that with migration of Muslim owners of the
suit land to Pakistan on partition of the country in 1947, the rights and
interest of the said Muslims vested in the custodian - defendant No.3 but it
did not affect the occupancy rights of the plaintiffs, which they had acquired
before migration of Muslims. Plaintiffs pleaded further that with the passing
of Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act, 1952, (for
short, 'the 1952 Act'), which came into force w.e.f 15.06.1952, their
occupancy rights were perfected into ownership and so, rights of the
custodian in the suit land were extinguished.
3.3 In order to seek declaration to the above effect, plaintiffs
approached Assistant Collector Ist Grade, Ballabgarh but their case was
dismissed on 23.04.1979. They preferred appeal before the Collector but
during pendency of that appeal, suit was withdrawn with permission to file
the fresh suit in the Civil Court on the same cause of action due to formal
and technical defect and that the Collector vide order dated 30.05.1980
granted the necessary permission.
3.4 Further case of the plaintiffs was that Tehsildar (Sales)
Gurugram, acting for defendant No.3- Custodian Evacuee Property and
contrary to the factual & legal position, allotted the suit land to defendant
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No.4- Ibban. In substitution of this contention, it was averred later that
Tehsildar (Sales), Gurugram intended to sell the suit land in open auction by
ignoring the rights and interest of the plaintiffs.
3.5 Plaintiffs also pleaded that in view of revised Rules and
Instructions, governing the sale and transfer of surplus Evacuee Property
notified by the Erstwhile Government of Punjab on 11.07.1962, the plaintiffs
were also entitled to get the land, as they had deposited the amount of
₹1365.08 as price of the land under the orders of the Tehsildar (Sales),
Gurgaon, but their application was wrongly rejected. In the alternative,
plaintiffs also pleaded that they had become owner of the suit land by way of
adverse possession.
3.6 With all the afore-said contentions, petitioners prayed for a
decree for declaration that they are owners and in possession of the suit land
in equal shares. They further prayed for decree of permanent injunction to
restrain the defendants No.1 to 3 from allotting the suit land to anyone.
4. Defendants No.1 to 3, who contested the suit admitted the
plaintiffs to be in cultivating possession of the suit land in view of entries in
the pre-consolidation revenue record. However, it was denied that tenancy of
the plaintiffs was for more than 100 years since the time of their
predecessors. According to defendants, the land being under the ownership
of Mohammadans immediately prior to the partition of the country, vested in
the custodian by operation of law under Section 4 of the East Punjab
Evacuee (Administration of Property) Act, 1947 (for short, `the 1947 Act').
They further pleaded that in view of Section 8(4) of the Administration of
Evacuee Property Act, 1950 (for short, `the 1950 Act'), the rights, if any, of
the plaintiffs in the suit land stood extinguished and their possession became
unauthorised. Defendants further pointed out that application of the plaintiffs
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for transfer of the land in their favour was rejected by the Tehsildar (Sales)
and that order was never challenged in the appeal. Defendants denied that
plaintiffs had acquired the occupancy rights in the suit land or that any such
rights had been perfected into the ownership rights. The objection was also
raised that the suit was barred by the principle of res-judicata, as the
previous suit for declaration was dismissed on 23.04.1979 by Assistant
Collector First Grade, Ballabgarh. It was also pleaded that jurisdiction of the
Civil Court was barred in view of Sections 36 and 46 of the Displaced
Persons (Compensation and Rehabilitation Act) 1954. Prayer was made for
dismissal of the suit.
5. As the record would reveal that initially, the trial Court vide
order dated 05.08.1985 came to the conclusion that Civil Court did not have
jurisdiction in the matter and so, directed to return the plaint for presentation
before the proper Forum. On appeal, the said order was set aside by the First
Appellate Court vide order dated 30.11.1987 by holding that only the Civil
Court had the jurisdiction to settle the dispute. The matter was remanded
back to the trial Court for fresh trial on merits.
6. Following issues were settled for adjudication:-
1. Whether the plaintiffs are in possession of the
agricultural land as tenants for the last more than 100
years of the suit land as alleged? OPP
2. Whether the plaintiffs have acquired the occupancy rights
regarding the suit land and thus they have become owners
of the suit land as alleged, if so, to what effect? OPP
3. Whether temporary allotment made by the concerned
authority in respect of suit land to defendant No.4 is
illegal as alleged? OPP
4. Whether a notice under Section 80 CPC has been served
upon the defendant? OPP
5. Whether this Court has got no jurisdiction to try the
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present suit? OPD
6. Whether the suit is barred by the principle of res-
judicata? OPD
7. Whether the suit is not maintainable in the present form?
OPD
7a. Whether the plaintiffs are entitled for ownership rights in
the suit land as pleaded in para No.9(a) of the amended
plaint? OPP
8. Relief.
7. Evidence produced by the parties was taken on record. After
hearing both the sides, the trial Court though found the possession of the
plaintiffs over the suit land for the last more than 40 years but held the same
to be unauthorised. It was further held that plaintiffs had not acquired
occupancy rights in the suit land and so, they had not become owner of the
same under the provisions of Punjab Occupancy (Vesting of Proprietary
Rights) Act, 1952, (for short, `the 1952 Act') and so, they were not entitled to
the declaration as prayed for. Issues No.1, 2 and additional issue (7a) were
accordingly decided against the plaintiffs. Issue No.3 was found to have
become redundant. Under Issue No.4, notice under Section 80 CPC was
found to have been served upon defendants and so, the issue was decided
against the defendants. The finding on Issue No.5 went against the
defendants by holding that Civil Court had the jurisdiction to entertain the
matter. Under Issue No.6, the suit was held to be barred by res-judicata.
Under Issue No.7, suit was held to be maintainable and so, finding on issue
went against the defendants. Consequent to all these findings, suit was
dismissed on 11.11.1988.
8. The aggrieved plaintiffs filed appeal. The First Appellate Court
found the possession of the plaintiffs/ their forefathers over the suit land at
least since 1914-15, as non occupancy tenants. Learned First Appellate
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Court then referred to Section 4 of the East Punjab Displaced Persons Land
Settlement Act, 1949 (for short, `the 1949 Act'); and Section 12 of the 1950
Act and held that the tenancy rights of the plaintiffs were not affected at all
after migration of the Muslim owners to Pakistan. It was further held that the
plaintiffs had become occupancy tenants in view of the provisions of Punjab
Tenancy Act, 1887 and that after coming into force of the 1952 Act, they had
acquired ownership rights. The First Appellate Court also came to the
conclusion that merely because plaintiffs had applied to the custodian for
transfer of ownership rights or had deposited any sale price would not mean
that they had surrendered their rights in the suit land. The appellate Court
further found that against the order of the Assistant Collector Ist Grade
dismissing the earlier suit filed by the plaintiffs, appeal had been filed before
the Collector, who had accorded necessary liberty to bring a fresh suit before
the Civil Court and, therefore, the bar of res-judicata was not attracted. The
alternative plea of the plaintiffs to have become owner of the suit land by
adverse possession was rejected. Consequent to all these findings, the
appeal was accepted. Judgment and decree of the trial Court was set aside
and the suit of the plaintiffs was decreed by the Appellate Court vide
judgment dated 13.09.1991.
9. Assailing the findings of the First Appellate Court, it is
contended by learned counsel for the appellants that after migration of the
Muslim owners of the suit land to Pakistan, the land had vested in the
custodian and so, possession of the plaintiffs even as tenant over the suit
land had become unauthorised, as they never got permission of the custodian
to continue in possession. It is argued that in these circumstances, plaintiffs
could not acquire any occupancy rights nor any such rights could have
matured into ownership. Still further, it is argued that the First Appellate
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Court erred in ignoring the plea of res-judicata, inasmuch as the earlier suit
filed by the plaintiffs had been dismissed on 23.04.1979 by the Assistant
Collector First Grade, Ballabgarh. It is urged that the suit could not be
withdrawn after its disposal, during the appeal proceedings. The appellants
also assailed the finding of the Courts below to the effect that the plaintiffs
were in possession of the land since 1914-15 in the capacity of tenants. The
issue relating to the jurisdiction is also raised to contend that Civil Court did
not have jurisdiction in the case pertaining to the evacuee properties.
Learned counsel also argues that payment of ₹1365/- as cost of the land was
wrongly treated as sale price, as it was the payment of damages for
unauthorised use and occupation. With all these submissions, prayer is made
for setting aside the judgment and decree passed by the First Appellate
Court; and to dismiss the suit of the plaintiffs - respondents.
10. Learned counsel for the contesting respondents- plaintiffs have
defended the judgment passed by the First Appellate Court and urged that
findings of the First Appellate Court are based upon the evidence on record
and so, appeal deserve to be dismissed.
11. I have considered submissions of both the sides and have
appraised the record carefully.
12. The long possession of the plaintiffs over the suit land is evident
from the revenue record. The same would reveal that as per jamabandi for
the year 1977-78 Ex.P1, plaintiffs are recorded to be non-occupancy tenants,
inasmuch as in the column of rent, the entry is "Bashra Malkan Bewajah
Derina Kast". Similar entries exist in all the previous jamabandis right from
the year 1939-40 to 1972-73 Ex.P3 to P.9. The revenue record excerpt
Ex.P10, duly proved on record, contain the earlier jamabandi entries for the
year 1914-15 onwards, revealing the names of Prashadi and Posti sons of
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Paltu to be in possession of the suit land as non-occupancy tenants. Pedigree
table Ex.P.28 revealed that Prashadi has two sons, namely, Chiranji Lal and
Bharat Singh. Plaintiff No.1 - Jaswant Singh is the son of Chiranji Lal;
whereas plaintiff No.2 is Bharat Singh. Thus, plaintiffs are clearly linked to
the entries in the revenue excerpt Ex.P10. It has not been disputed that at the
time of consolidation, the suit land was allotted in lieu of the old Khasra
numbers, which fact is otherwise also evident from Khatouni Intemal Ex.P11
& Ex.P12 and Naksha Hakdaran Ex.P13, as has been duly discussed by
learned First Appellate Court. Thus, it stands established beyond any shadow
of doubt that the plaintiffs/ their forefathers have been in possession of the
suit land at least since 1914-1915 i.e. for the last more than 40 years. The
concurrent finding in this regard, as recorded by the Courts below, could not
be assailed by the appellants- defendants, as even otherwise also, the said
finding is based upon the documentary evidence.
13. Admittedly, the land was owned by Muslims prior to the
partition of the country in 1947. The contention of the appellants-
defendants is that on migration of the Muslim owners, the suit property
came to be vested in the custodian by virtue of Section 4 of the 1947 Act, to
be read with Section 8(4) of the 1950 Act and that all tenancy rights on the
evacuee land stood terminated and the possession of the plaintiffs became
unauthorised in view of Section 9 of the 1949 Act.
14. The question is as to whether the suit property had
automatically been vested in the custodian by virtue of Section 4 of the 1947
Act, as is contended by the defendants. Sections 4 and 6 of East Punjab
Evacuee (Administration of Property) Act, 1947 (as they stood at the
relevant time) read as under:-
"4. Vesting of evacuee property in the Custodian.-All evacuee property
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situated within the province shall vest in the Custodian for the purposes of this
Act and shall continue to be so vested until the Provincial Government by
notification otherwise directs.
6. Custodian to take possession of evacuee property.-
(1) The Custodian shall take possession of all evacuee property vesting in him
under this Act.
(2) The custodian shall comply with the following provisions in taking
possession of any immovable property under Sub-section (1), namely :
(a) The custodian shall publish in the locality a notice specifying the
property of which he intends to take possession.
(b) Where the property is occupied by any person.
(i) The custodian shall give his notice in writing requiring such
person to vacate the property;
(ii) And if that person claims to be entitled to continue in
possession of the property, the Custodian shall hold a summary
inquiry and determine the claim;
(iii) The Custodian may allow such person to continue in
possession on such terms and conditions as he thinks proper if
such person is held to be so entitled;
(iv) If such person refuses or fails to vacate the property the
Custodian may evict such person and use all force necessary
thereto, and may after giving reasonable warning and facility to
any women not appearing in pubic to withdraw, remove or open
any lock or bolt or break open any door or do any act necessary
for taking possession.
(c) The Custodian shall proceed to take possession of the property in
the presence of not less than two residents of the locality, at least one of
whom if possible shall be a member of the community to which the
evacuee owner belongs, and shall prepare a record, in duplicate, of the
proceedings which shall be signed by him and each of the witnesses."
15. Though as per Section 4 of the 1947 Act, the evacuee property
situated in province of East Punjab is to vest in the custodian for the purpose
of the Act but custodian is required to take possession of the same by
following procedure laid down in Section 6 of the 1947 Act.
16. In the present case, plaintiffs were already in possession of the
suit property much prior to the 1947 Act. It is not case of defendants-
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appellants that they ever took possession of the property in dispute by
following the procedure as laid down in Section 6 of the Act. As possession
was never taken from the plaintiffs by following the procedure as laid down
in Section 6 of the 1947 Act, therefore, said possession cannot be held to
have become unauthorised.
17. Learned counsel for the appellants has also referred to Section 9
of The East Punjab Displaced Persons Land Re-settlement Act, 1949 so as to
contend that possession of the plaintiff on the suit land, which was now
evacuee property, had become unauthorised, as their lease was deemed to
have terminated on 25.07.1949. Section 9 of 1949 Act reads as under:
"9. Termination of leases of land by evacuees in favour of non-evacuees. -
(1) Notwithstanding anything contained in any law for the time being in force,
all leases of land except such leases as the Custodian may by order exempt
from the operation of this section, made by an evacuee in favour of a person
other than an evacuee shall be deemed to have terminated on the 25th July,
1949, and the land shall be deemed to have vested under this Act in the
Custodian with effect from the same date free from all rights of the lessee or
persons claiming under such lessee.
(2) Where any lease is determined under this section, there shall be paid
compensation the amount which shall be determined in the manner and in
accordance with the principles hereinafter set out, that is to say -
(a) Where the amount of compensation can be fixed by agreement
between the Custodian and the lessee, it shall be paid in accordance
with such agreement.
(b) Where no such agreement can be reached, the State Government
shall appoint as arbitrator any Subordinate Judge having jurisdiction in
the district where the land is situated.
(c) At the commencement of the proceedings before the arbitrator the
Custodian and the person to be compensated shall state what in their
respective opinions is a fair amount of compensation.
(d) An appeal shall lie to the District Judge against an award of an
arbitrator except in cases where the amount thereof does not exceed the
amount prescribed in this behalf by the rule made by the [State]
Government.
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(e) Save as provided in this section and in any rules made thereunder
nothing in any law for the time being in force shall apply to arbitration
under this section.
(3) The compensation awarded shall be paid by the Custodian to the person
entitled thereto according to the award :
Provided that nothing herein contained shall affect the liability of any person
who may receive the whole or any part of any compensation awarded under
this section to pay the same to the person lawfully entitled thereto
18. Again, there is nothing on record to suggest that lease in favour
of the plaintiffs, granted to them/their fore-fathers by their Muslim owners,
who had become evacuee, was ever terminated by the custodian, in whom
the property had been vested by virtue of Section 4 of the 1947 Act, by
following the procedure laid down in Section 9 (2) of the 1949 Act.
19. Further, Section 12 of The Administration of Evacuee Property
Act 1950 (as it stood then) provides about power of the custodian to cancel
any lease. It reads as under:
"12. Power to vary or cancel leases or allotments of evacuee property.-
(1) Notwithstanding anything contained in any other law for the time being in
force, the Custodian may cancel any allotment or terminate any lease or amend
the terms of any lease or agreement under which any evacuee property is held
or occupied by a person, whether such allotment, lease or agreement was
granted or entered into before or after the 14th day of August, 1947.
Provided that in the case of any lease granted before the 14th day of August,
1947, the Custodian shall not exercise any of the powers conferred upon him
under this sub-section unless he is satisfied that the lessee -
a) has sublet, assigned or otherwise parted with the possession of the whole or
any part of the property leased to him.
b) has used or is using such property for a purpose other than that for which it
was leased to him
c) has failed to pay rent in accordance with the terms of the lease."
20. Above provision make it quite clear that powers of the
custodian to cancel any lease granted before 14th day of August, 1947, were
taken away, unless the lease fell in any of the three categories mentioned in
(a), (b) and (c) of the provision. In other words, all the leases given by the
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owners prior to the partition were saved.
21. Learned First Appellate Court has rightly referred to Union of
India Vs. Nathi, 1985(1) Land LR 545, in which it was held by the
Financial Commissioner that Section 12 of the 1950 Act did not authorise
the custodian to terminate any lease with tenant under Muslim owners,
which were of a point in time prior to 14.08.1947 notwithstanding Section 9
of the 1949 Act. Hon'ble Supreme Court in Moola Vs. Financial
Commissioner and others, 1980 PLJ 80, has also held that the 1949 Act did
not alter this position. It has been held by Hon'ble Supreme Court that
where a tenant was in possession of the land prior to 14.08.1947, Section 9
of the Act of 1949 Act did not have the effect of automatic cancellation of
his lease.
22. In the present case, it is not the case of the defendants-
appellants that the present case fails under any of the categories mentioned
at (a), (b) and (c) of Section 12 of the 1950 Act and as such, it is held that
Section 12 of the Central Act of 1950 or Section 9 of the 1949 East Punjab
Act did not affect the rights of the plaintiffs - respondents as tenants on the
suit land.
23. The next question arises as to whether with the passage of time,
plaintiffs had acquired occupancy rights in the suit land by virtue of the
provisions of the Punjab Tenancy Act, 1887. As has been noticed earlier that
the plaintiffs are recorded to be in possession as tenants over the suit land at
least since 1914-15 without paying any rent, except land revenue and cesses.
In Bishamber Vs. State of Haryana, 1989 P.L.J. 733, it has been held that in
case jamabandi shows possession on the disputed land for the last more than
30 years without payment of any rent to the land owner; and entry in the
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column of rent is "Bashra Malkan Bewajah Derina Kast"; and the tenants
are only paying the land revenue and cesses, then a presumption arises that
such a tenant fulfils the conditions of clause (a) of sub Section (1) of Section
5 of the Punjab Tenancy Act and, therefore, entitled to occupancy rights.
24. In the present case, plaintiffs being in possession of the suit land
at least since 1914-15, without paying any rent to the owners and paying
only the land revenue and cesses and the entry in the revenue record being
"Bashra Malkan Bewajah Derina Kast", therefore, there can be no doubt in
holding that plaintiffs had acquired the occupancy rights. The contention to
the contrary as raised by counsel for the appellants- defendants is held to
carry no weight.
25. Further, plaintiffs having acquired the occupancy rights in the
suit land as has been found above, were vested with the ownership rights in
view of the provisions of Punjab Occupancy Tenants (Vesting of Proprietory
Rights) Act, 1952. The contention of learned counsel for the appellants to
the effect that possession of the plaintiffs being unauthorised; or the suit land
being evacuee property, so, plaintiffs cannot be vested with the ownership
rights, has no merit, as it has been found in the supra discussion that
possession of the plaintiffs over the suit land was never unauthorised; and
that they had acquired occupancy rights in the suit land. Besides, Section 9
of the Amending Act (Punjab Act No.31 of 1958), as introduced in 1958,
made the provisions of the 1952 Act to be applicable to occupancy tenants of
a landlord, who is an evacuee as defined in clause (d) of Section 2 of the
1950 Act. This view was also taken in Mam Chand Vs. Union of India,
1984 PLJ 446. As such, it is held that the plaintiffs had acquired the
ownership rights in the suit land by virtue of the 1952 Act.
26. As far as the jurisdiction of the Civil Court is concerned, it has
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been authoritatively held by a Full Bench of this Court in Shiv Charan Vs.
Financial Commissioner, Haryana, Law Finder Doc Id #78308, as under:-
"7. Mr. R.K. Jain relying on the definition of `Occupancy Tenant' given in the
Vesting Act has highlighted that the inquiry by the Civil Court could be
confined only to such occupancy tenants, who were recorded as such in the
revenue record before the commencement of this Act and the jurisdiction with
regard to the second category i.e. of those occupancy tenants, who had attained
rights of occupancy subsequently or whose rights as such could be proved by
other evidence by with the Revenue Court.
8. We are, however, of the opinion that this very issue had been raised
before and repelled by the Division Bench in Amin Lal's case. The Bench
noticed that expression "Occupancy tenant" included two types of occupancy
tenants, namely, (i) those who were recorded as such in the revenue record
immediately before the commencement of the Act and (ii) those, whose rights
as occupancy tenants could be established by other evidence. The Court
observed that after the coming into force of the Vesting Act, what was required
was in fact a declaration of title based on the fact as to whether a person
claiming a right of occupancy had in fact become the owner, though for
arriving at this conclusion. It would often be necessary for the Court to
examine the conditions prescribed by the Vesting Act, and to determine as to
whether they had been fulfilled. The court further observed that after the
coming into force of the Vesting Act, there was a simultaneous extinguishment
of the rights of Occupancy and conversation of the same into ownership and as
such a declaration of title could be given only by the Civil Court. It was
accordingly concluded as under:-
"A Civil Court has jurisdiction to try all suits of a civil nature unless its
jurisdiction with regard to a particular type of a suit is expressly or implied
barred. A suit in which the right to property is to be decided is beyond
doubt a suit within the cognizance of a Civil Court. A provision of law
which takes away such a jurisdiction has to be strictly construed. Section
77(3)(d) of the Tenancy Act takes out of the jurisdiction of a Civil Court
only that suit which is instituted to establish a claim to a right of
occupancy and not where title to property is to be decided on the
determination of occupancy rights which determination was only to
substantiate the plea of ownership. After the coming into force of the
Vesting of Property Rights Act, occupancy rights had ceased to exist and
all of them were automatically converted into statutory ownership."
9. We are of the opinion that the reliance of the learned counsel on Omkar
Singh's and Jiwan's case (supra) is misplaced. As already mentioned above,
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the learned Single Judge in Omkar's case merely noticed the judgment of this
Court in Amin Lal's case and did not even remotely discuss the issues involved
therein. In Jiwan's case, no reference was made to Amin Lal's case by the
learned Single Judge through primary reliance was placed on Raghbir Singh
V. Beli Ram, 1967 PLR (Delhi Section) 396 to hold that a revenue Court
alone could go into the dispute. We, however, find from a perusal of the
judgment in Amin Lal's case that the Division Bench had differed with the
ratio of the judgment in Raghbar Singh's case (supra) by observing that "We,
with all respect, to the learned Judge did not find ourselves in agreement with
him." We are, therefore, of the opinion that the judgment of the Single Bench
in Puran Lal Aggarwal's case (supra) relying on the decision of Amin Lal's
case (supra) lays down the correct law. It was accordingly to be held that after
the coming into force of the Vesting Act, the Civil Court alone would have the
jurisdiction to determine the dispute envisaged in Section 77(3)(d) of the Act
and the jurisdiction of the revenue Court would be barred. The judgments of
the Single Bench in Omkar Singh and Jiwan's case (supra) and any other case
holding likewise are overruled.
10. To our mind, therefore, a civil suit would lie with respect to both the
categories of occupancy tenants envisaged in Section 2(f) of the Vesting Act."
27. In view of the above-said legal position, it is clear that it is only
the Civil Court alone, which would have jurisdiction over the issue as to
whether a person had acquired occupancy rights or not, and consequent to
the acquiring of the occupancy rights, whether the ownership rights had
vested in him or not.
28. The other point as raised by learned Counsel for the appellants
is that payment of ₹1365/- by the plaintiffs was wrongly treated by the First
Appellate Court as cost of the land, though it was payment of damages for
unauthorised occupations.
29. It has been found by the First Appellate Court that the plaintiffs
had moved an application dated 02.02.1981 Ex.D2 to the custodian -
respondent No.3 for transfer of the ownership rights of the suit land on
deposit of sale price of ₹1365/- through treasury receipt Ex.D3 and this was
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Neutral Citation No:=2024:PHHC:044985
RSA No.326 of 1992 (O&M) 2024:PHHC:044985
done in pursuance of the instructions of the Government dated 11.07.1962
Ex.PX and Ex.ACRW1/A. This application was dismissed by the custodian
vide order dated 23.03.1981 Ex.AX. Simply because plaintiffs had applied
for transfer of ownerships to them, it did not in any manner take away the
occupancy rights of the plaintiffs in the suit land as has been rightly
concluded by the First Appellate Court.
30. The last contention of learned counsel for the appellants is that
the earlier suit filed by the plaintiffs was dismissed by the revenue Court and
the appeal filed by the Collector was dismissed as withdrawn and that with
the dismissal of the earlier suit, the present suit became barred by res-
judicata.
31. There is no merit in this contention. It has not been disputed
before this Court that in the appeal filed before the Collector, the suit itself
was withdrawn with liberty to file fresh suit on the same cause of action in
the Civil Court. It has been held in Veer Bhan Vs. Madan Gopal, 1991 PLJ
48 that when a suit is withdrawn with liberty to bring a fresh suit, the effect
thereof is as if suit was never brought and that the parties could reagitate the
matter de-novo on the same facts.
32. On account of entire discussion as above, this Court does not
find any illegality in the impugned judgment and decree dated 13.09.1991
passed by the First Appellate Court. As such, finding no merit in the present
appeal, the same is hereby dismissed.
April 02, 2024 ( DEEPAK GUPTA )
renu JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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