Punjab-Haryana High Court
Prem Singh vs Tehsildar-Cum-Sales, Ropar And Others on 3 April, 2024
Neutral Citation No:=2024:PHHC:045082
RSA-2678-2019 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA-2678-2019 (O&M)
Date of reserved:28.02.2024
Date of Pronouncement: 03.04.2024.
Prem Singh ...Appellant.
Versus
Tehsildar-cum-Sales, Ropar and others ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. Rajesh Sethi, Advocate;
Mr. Arun Biriwal, Advocate;
Ms. Preeti Bansal, Advocate and
Mr. Paramdeep Singh, Advocate
for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
plaintiff against the concurrent findings recorded by both the Courts below
vide which the suit of the plaintiff was dismissed.
2. Plaintiff-Prem Singh filed suit against the defendants Tehsildar-
cum-Sales, Bhagat Singh @ Bhata, Jagir Singh son of Parshottam Singh and
proforma defendant Somu seeking declaration to the effect that he was
owner in possession of ½ share (i.e. 10 Kanal 17 Marlas) out of 21 Kanal 14
Marlas, situated in Khewat Khatauni No.664/665/666 Khasra Nos.43//7(4-
16), 14(7-8), 17(9-10) situated at village Bara Pind, H B No.326, Tehsil and
District Ropar, as per sale certificate dated 03.01.2005. The plaintiff further
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sought a declaration to the effect that the sale certificate dated 03.01.2005
was legal and valid and the order of the Financial Commissioner, Revenue,
Chandigarh dated 24.12.2012 was illegal, null and void. The plaintiff also
sought the consequential relief of permanent injunction against forcible
interference and dispossession by the defendants from the suit land.
3. Brief facts of the case as per plaint are that the plaintiff
purchased the suit property in restricted petition of surplus rural evacuee
agricultural land in the open auction being the highest bidder. He sold half
of the suit property to proforma defendant No.4 and the name of profroma
defendant No.4 was also entered in the revenue record and the mutation was
also sanctioned in his favour. It has been alleged that defendant No.2 filed
objections against the auction and the then Sales Commissioner, Jalandhar
dismissed the objections on 24.02.1977 but the sale was not confirmed and
thereafter, the case was sent to Sale Commissioner, Rupnagar for
confirmation of sale. On 25.05.1985, Sale Commissioner passed on order
that "whenever purchaser wants, he may move an application and re-open
the case." The plaintiff moved an application for confirmation of sale on
05.11.1985, which was dismissed on 07.02.1986 and the appeal preferred
before Deputy Commissioner-cum-relief Sales Commissioner, Rupnagar
against the order dated 07.02.1986, was dismissed on 05.12.1989. The
revision petition against the order dated 05.12.1989 was accepted by the
Divisional Commissioner, Patiala, Division Patiala, who sent back the case
to the Sales Commissioner, Rupnagar with the direction to fix the price
according to the present market rate, to be deposited by the petitioner.
Market value of the land was fixed by Halqa Patwari, which was endorsed
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by Halqa Kanungo and the plaintiff deposited the said amount and on
03.01.2005, defendant No.1 issued the sale certificate in favour of the
plaintiff regarding land measuring 21 Kanal 14 Marlas, Gair Mumkin,
comprised in Khasra Nos.43//7 (4-16), 14(7-8), 17(9-10) and the mutation
was also sanctioned and incorporated in the revenue record. However, the
revenue officer gave instructions to the plaintiff to get corrected the area of
land in para 2 of order dated 04.09.2001 passed by Commissioner, Patiala
Division, Patiala as only 4 Kanal 14 Marlas was mentioned instead of 21
Kanal 14 Marlas. So the plaintiff moved an application for correction of the
said order but his application was dismissed on 27.08.2006. Revision
against the same was preferred in the Court of Financial Commissioner,
Revenue, Punjab at Chandigarh, which was disposed of on 25.02.2008 and
the case was remanded back to Chief Sales Commissioner, Rupnagar to
decide it afresh within three months after hearing both the parties. The
plaintiff also filed Civil Writ Petition No.1799 of 2009 (O&M) before this
Court and vide order dated 22.02.2010, case was remanded back to
Financial Commisisoner, Revenue, Punjab which was dismissed vide order
dated 24.12.2010. CWP No.1913 of 2011 was filed against the order dated
24.12.2010 passed by the Financial Commissioner but the same was also
dismissed vide order dated 04.12.2012. This order was challenged by way
of LPA No.2084 of 2012, which was dismissed on 14.12.2012. It was
alleged that at the time of auction, the plaintiff was not minor and the
observation of the Financial Commissioner and the Chief Sales
Commissioner that he was a minor is against the record. The plaintiff had
approached the Financial Commissioner only for correction of clerical
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mistake and the Financial Commissioner without providing any opportunity
of hearing set aside the sale after 34 years. The plaintiff is owner in
possession of the suit property but the defendants in connivance with each
other are trying to take forcible possession of the same.
4. The suit of appellant/plaintiff was dismissed by the trial Court,
vide judgment and decree dated 22.11.2017. The appeal preferred by the
appellant/ plaintiff before the First Appellate Court was dismissed, vide
judgment and decree dated 27.09.2018. Hence, the present Regular Second
Appeal has been filed by the appellant/ plaintiff.
5. Learned counsel for the appellant/ plaintiff has contended that
both the Courts below while dismissing the suit of the plaintiff relied upon
only on the judgments passed by this Court in CWP-1913-2011 and LPA-
2084-2012 and did not give any independent finding in respect of issues
No.1 and 2, on the basis of the evidence led by the appellant/ plaintiff. A
suit is to be decided on the basis of pleadings and evidence led in support
thereof. The evidence led by the appellant/ plaintiff was not considered in
the right perspective by the Courts below. The trial Court in fact held that
the suit is not barred by resjudicata, but still dismissed the suit on the basis
of findings given by this Court in the aforesaid cases. He has argued that the
appellant/ plaintiff purchased the land in open auction, way back in the year
1976 and in continuity of the proceedings for confirmation of this sale, the
Divisional Commissioner Patiala, Division Patiala, accepted the revision
petition on 04.09.2001 and directed the authorities to fix the price of the
land as per the market rate. The value of the land so fixed was deposited by
the appellant/ plaintiff and sale certificate was issued in his favour and
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mutation was also sanctioned. But the Financial Commissioner set aside the
sale of the land after about 34 years vide order dated 24.12.2010, which was
challenged by way of civil suit which had not been taken into consideration
by the Courts below. He has also submitted that when the auction took place
in the year 1976, the appellant/ plaintiff was 24 years old as per the Voter
list of the year 1975 of Village Bara Pind of the Constituency of Anandpur
Sahib, District Ropar. So it was amply proved that at the time of auction the
appellant/ plaintiff was 22 years old and was not a minor as alleged by
defendants No.2 and 3. So findings of the Financial Commissioner as well
as The Chief Sales Commissioner, Ropar that appellant/ plaintiff was minor
while participating in the open auction, which was conducted in the year
1976, are perverse and against the record. The alleged delay in no
circumstances could have been attributed to the appellant/plaintiff, but the
revenue authorities failed to issue the sale certificate. Though, later on the
sale certificate was issued in his favour vide order dated 04.09.2001 passed
by the Commissioner, Patiala Division but a clerical/ typographical error
crept in the order dated 04.09.2001, which was pointed out to the appellant/
plaintiff by the revenue authorities. But the application which was moved by
the appellant/ plaintiff for correcting that error in the revenue entry was
dismissed by the Commissioner. He has submitted that there was no fraud or
concealment on the part of the appellant/ plaintiff to hold that the sale
certificate had been procured by the appellant/ plaintiff fraudulently and has
prayed that the judgments and decrees passed by both the Courts below be
set aside.
6. I have heard learned counsel for the appellants and gone
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through the records thoroughly.
7. In the instant case, the plaintiff has sought the declaration that
he is owner in possession to the extent of ½ share of land comprised in
Khasra Nos.43//7 (4-16), 14(7-8), 17(9-10). It has also been claimed that the
sale certificate issued in his favour on 03.01.2005 is valid. Further,
declaration has been sought that order dated 24.12.2012 passed by the
Financial Commissioner, Revenue, Punjab, Chandigarh is illegal, null and
void and is against the law and equity.
8. As per the case of the plaintiff, auction was conducted on
21.01.1976 and he participated in the auction proceedings and was the
higher bidder. The petition filed by defendant No.2 was dismissed by the
Sales Commissioner on 24.02.1977. On 25.05.1985, Sales Commissioner,
Rupnagar ordered that the property be sold to the plaintiff as and when he
moved an application. On 05.11.1985, the application was moved by the
plaintiff for depositing the money which was dismissed on 07.02.1986. The
appeal preferred against the said order was dismissed on 05.12.1989.
However, revision filed by the plaintiff on 05.12.1989 was accepted by the
Divisional Commissioner Patiala, Division Patiala and sale certificate dated
03.01.2005 was issued by Tehsildar in respect of the suit property in favour
of the plaintiff on the basis of the auction dated 21.01.1976. Thereafter,
when the plaintiff moved an application for correction of the clerical error in
the order dated 04.09.2001 of the Commissioner, the said application was
dismissed on 25.0.2.2008. Thereafter, the writ petition was filed before this
Court and the case was remanded back to the Financial Commissioner,
Punjab, who vide order dated 24.12.2010, dismissed the application of the
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plaintiff. The plaintiff approached this Court by way of filing the writ for
quashing of the order dated 24.12.2010 passed by the Financial
Commissioner, Revenue and the Financial Commissioner, vide order dated
24.12.2010 rejected the claim of the petitioner. The copy of order dated
14.12.2012 of this Court in LPA-2084-2012 (Ex.D4) has been produced on
record wherein it was held as under:-
"The perusal of the order passed by the Financial
Commissioner reveals that as the appellant did not address any
arguments with reference to infirmities in the restricted auction
and was unable to explain why the application for confirmation
of sale was moved after 7 years delay and the revision before
the Commissioner was filed after 11 years, the Commissioner
had no jurisdiction to pass an order confirming the auction and
directing the Tehsildar, sale, to issue a sale certificate in favour
of the appellant 18 years after the auction. It is rather
surprising that an application for confirmation of auction was
accepted and sale certificate was ordered to be issued 18 years
after the auction. The infirmities in conduct of the restricted
auction and facts noticed by the Financial Commissioner and
the learned Single Judge, in our considered opinion, were
sufficient to enable the Financial Commissioner to exercise
jurisdiction in the matter and to set aside the order passed by
the Commissioner and the auction."
9. In the writ petition No.1913 of 2011 decided on 04.12.2012,
this Court after considering the contentions of counsel for the appellant/
plaintiff, dismissed the writ while holding that the Financial Commissioner
was justified while going into the entire issue and has rightly came to the
conclusion that the allotment of the land on the basis of auction was not in
consonance with the rules and the petitioner failed to remove the other
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lurking defects or infirmities appearing from the record. It was also held that
the Financial Commissioner was justified in reopening the entire issue as
this was as per the directions issued by this Court and the plea of the
petitioner that he had only argued in regard to the correction of the clerical
error in the order would not take him anywhere. The relevant part of the
aforesaid order is reproduced as under:-
"Counsel for the petitioner was asked to even disclose
the date of birth of the petitioner so as to consider this aspect
but he is unable to disclose the same. The Financial
Commissioner in my view is justified in re-opening the entire
issue as this is as per the direction issued by this Court. In this
background plea of the petitioner that he had only argued in
regard to the correction of the clerical error in the order would
not take him anywhere. Once this Court had directed the
Financial Commissioner to decide the case afresh in
accordance with law, the Financial Commissioner was justified
in going into the entire issue and has rightly come to the
conclusion that the sale in this case by way of auction suffer
from various infirmities and has rightly interfered therein to
pass the impugned order"
10. The Courts below have rightly held that once this Court has
endorsed that the order for setting aside the auction was legally passed, then
the appellant/ plaintiff cannot seek declaration claiming himself to be the
owner in possession of the suit property when he is not holding any sale
certificate. Rather while by way of filing the present suit, the appellant/
plaintiff is trying to reagitate the matter already decided by this Court. The
appellant/ plaintiff has also failed to point out any perversity in the order of
the Financial Commissioner. The Financial Commissioner found that the
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auction was defective as the restricted auction was not duly published. The
notice was not given to the harijans of the village and there was doubt about
the age of the petitioner for participation in the auction. Voter list cannot be
taken as authentic proof of his age. The plaintiff/ appellant has also admitted
in his cross-examination that he had no proof of his age.
11. For the reasons recorded above, the present Regular Second
Appeal fails and is dismissed as it does not raise any question of law much
less substantial question of law.
12. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
03.04.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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