Punjab-Haryana High Court
(O&M) Piara Lal Etc vs Atma Singh Etc on 8 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:083945
RSA-1626-1994(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1626-1994(O&M)
Date of Order:08.07.2024
Piara Lal (since deceased) through LRs and another
.Appellants
Versus
Atma Singh (since deceased) through LRs and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Munish Gupta, Advocate
for the appellants.
Mr. K.S.Dadwal, Advocate and
Ms. Neha Jain, Advocate
for respondent no.1
Mr. H.S.Bajwa, Advocate
for respondent no.2.
ANIL KSHETARPAL, J
CM-4219-C-2024
1. For the reasons stated in the application which is supported by
an affidavit, the application for bringing on record the legal representatives
of deceased late Sh. Piara Lal [appellant no.1] mentioned in paragraph 3 of
the application, is allowed, subject to all the just exceptions.
The amended memo of parties is taken on record.
CM stands disposed of.
MAIN
2. In this Regular Second Appeal, the plaintiffs assail the
correctness of the First Appellate Court's judgment which in turn has
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reversed the trial court's judgment.
3. In order to comprehend the issues involved in the present case,
the relevant facts, in brief, are required to be noticed.
4. The plaintiffs were allotted inferior evacuee land measuring 12
kanals and 11 marlas, in the year 1962. In the year 1971, the Deputy
Commissioner assumed that plaintiff no.1-Piara Lal has died, hence, the
allotment made in the year 1962 was cancelled and the property was
allotted to the defendants on 08.09.1971. The plaintiffs filed civil suit which
was disposed of in terms of the settlement dated 27.05.1975. It was agreed
that if the plaintiffs are successful in getting the allotment in favour of the
defendants' cancelled, they shall be delivered possession by the defendants.
Civil Writ Petition No.1358 of 1973, was filed in this Court by Sh. Gurdas
Ram, where he prayed for issuance of an appropriate writ. The aforesaid
writ petition was disposed of by the Division Bench on 09.10.1979, with the
following operative part of the order:-
"4. After hearing the learned counsel for the parties, we
are of the view that whether the original allotment was
regular or irregular, the matter should have been decided
after hearing the petitioner. This matter has already
been dealt with by a Letters Patent Bench of this Court in
L.P.A.Nol.623 of 1975. Smt. Charan Kaur vs. The State
of Punjab, decided on 23rd of March 1977, and there also
it was held that before passing an adverse order against
the petitioners, they would be entitled to a hearing.
5. For the reasons recorded above, we allow all these
petitions, quash the orders of cancellation of allotment
and direct that the Deputy Commissioner, Hoshiarpur,
shall consider all those cases afresh in accordance with
law after affording a hearing to the petitioners. The
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petitioners, through their counsel, have been directed to
appear before the Deputy Commissioner, Hoshiarpur, on
12th of November, 1979, for proceeding further in the
matter. There will be no order as to costs."
5. Thus, the order of cancellation in favour of the plaintiffs and the
allotment in favour of the defendants was set aside. The plaintiffs claim that
once the cancellation order dated 08.09.1971 has been set aside by the
Division Bench, the allotment in their favour in the year 1962 stands
revived.
6. There was another round of litigation when the defendant-Atma
Singh filed civil suit against the plaintiffs. The aforesaid civil suit was
decreed on 17.10.1985, with the following order:-
"19. In the light of my findings on the above issues, the
suit of the plaintiff is decreed for declaration that he is in
possession Kh. No.27/19 min west measuring 7 kls
situated in Village Naloian, District Hoshiarpur and the
defendant shall stand restrained from dispossession the
plaintiff from the suit land otherwise than in due course
of law. Parties are left to bear their own costs. Decree
sheet be made and file be consigned to the record room."
7. The appellants filed Civil Writ Petition No.4125 of 1978,
challenging cancellation of his allotment in the year 1971. The respondents
(defendants) filed Civil Writ Petition No.339 of 1979. Both these writ
petitions were disposed of in terms of the order passed by Division Bench on
09.10.1979. Against the judgment and decree dated 17.10.1985, the
plaintiffs filed an appeal which was dismissed on 18.09.1986.
8. Subsequently, the plaintiffs filed civil suit on 26.11.1986, for
grant of decree of declaration and possession along with releif of recovery of
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Rs.2880/- as damages. The defendants contested the suit claiming that they
have been allotted the land and there was no settlement between the parties
on 27.05.1975. The trial court decreed the suit and thereafter, the First
Appellate Court reversed the judgment of the trial court on the following
reasons:-
(i) The Collector has not passed any fresh order or allotment
order in favour of the plaintiffs in compliance with the
order passed by the Division Bench on 09.10.1979;
(ii) The plaintiffs' suit has been filed after a period of 3 years
from the date of cancellation of the allotment of the
defendants, hence, the suit is filed beyond the prescribed
period;
(iii) The plaintiffs have failed to prove the compromise
arrived at between the parties in the year 1975, it is vague
and therefore, the suit cannot be decreed on this basis.
9. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book.
10. The learned counsel representing the appellants while narrating
the facts in chronological order claims that the First Appellate Court has
erred in accepting the appeal. He submits that the Hon'ble Division Bench
has only set aside the cancellation of allotment in favour of the appellants.
As a natural consequence, he submits that the plaintiffs' allotment shall stand
revived. He submits that the failure on the part of the Collector to pass the
order for the last 45 years should not deprive the appellants from relief of
possession.
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11. Per contra, the learned counsel representing the respodnents
contend that Civil Writ Petition No.339 of 1979, filed by the defendants was
disposed of in terms of the order passed in Civil Writ Petition no.4125 of
1978, which was filed by the appellants. He submits that the civil suit filed
by the defendants was decreed on 17.10.1985, which in appeal was upheld
by the First Appellate Court. He further submits that the Collector has failed
to pass the order.
12. This court has considered the submissions of the learned
counsel representing the parties.
13. There is no dispute that the plaintiffs were allotted the suit land
in the year 1962. This allotment was cancelled in the year 1971. However,
the aforesaid cancellation has been set aside. The order passed on
08.09.1975, not only cancelled the allotment in favour of the plaintiffs but
also made an allotment in favour of the defendants. Once that order has
been set aside, the allotment in favour of the defendants will no longer
subsist. The defendants continue to be in possession. The plaintiffs have a
subsisting allotment in their favour. The Collector has never passed any
fresh order cancelling allotment made in the plaintiffs' favour in the year
1962. Hence, the plaintiffs have superior right when compared to the
defendants.
14. The First Appellate Court has erred in dismissing the plaintiffs'
claim on the ground that the Collector has failed to pass fresh order. Even if
it is correct, still the allotment in favour of the plaintiffs continue.
15. The First Appellate Court has also erred in declaring that the
plaintiffs' suit filed in the year 1986 is beyond the prescribed time. It may be
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noted here that the appeal filed by the plaintiffs against the judgment and
decree dated 17.10.1985, was dismissed on 18.09.1986, in the judgment
dated 09.10.1975.
16. At this stage, the learned counsel representing respondent no.1
submits that before the First Appellate Court, two appeals were filed, hence,
the appellants were required to file two separate appeals.
17. It is evident that both the first appeals were filed against the
judgment passed by the Court in the plaintiffs's suit. The suit was only one.
Moreover, the learned counsel representing respondent no.1 was requested
to draw the attention of the court to the two decrees passed by the First
Appellate Court, however, he failed to draw the attention of the court.
Hence, one appeal is maintainable. Moreover, after a period of 30 years, the
objection to the maintainability of the appeal for the first time is not
justifiable.
18. Keeping in view the aforesaid facts and discussion, the
judgment passed by the First Appellate Court is set aside and that of the trial
court is restored.
19. The appeal is allowed.
20. All the pending miscellaneous applications, if any, are also
disposed of.
July 08, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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