[Cites 21, Cited by 0]
Punjab-Haryana High Court
Gram Panchayat vs State Of Haryana on 23 January, 2026
RSA-1401-1987 (O&M) and two connected cases 1
101 (3 cases)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1401-1987 (O&M)
Reserved on :14.01.2026
Pronounced on : 23.01.2026
Uploaded on : 23.01.2026
MUNICIPAL CORPORATION, GURUGRAM SUBSTITUTED FOR
GRAM PANCHAYAT, DUNDAHERA ...Appellant
Vs.
HARYANA STATE THROUGH COLLECTOR, GURGAON (NOW
GURUGRAM) AND OTHERS
...Respondents
2. RSA-1402-1987 (O&M)
MUNICIPAL CORPORATION, GURUGRAM SUBSTITUTED FOR
GRAM PANCHAYAT, DUNDAHERA ...Appellant
Vs.
KAMAL @ KAMLA (SINCE DECEASED) THROUGH LRS AND
OTHERS
...Respondents
3. RFA-2251-1987 (O&M)
GRAM PANCHAYAT, DUNDAHERA THROUGH ITS SARPANCH
...Appellant
Vs.
HOSHIAR SINGH (SINCE DECEASED) THROUGH LRS AND
OTHERS
...Respondents
CORAM:- HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Present: Mr. Ashish Aggarwal, Senior Advocate with
Mr. Vishal Pundir Advocate for the appellant(s).
Mr. Mayank Vashishth, Advocate for
Mr. Prateek Mahajan, Advocate
for the appellant in RFA-2251-1987.
Mr. Ved Parkash, Sr. DAG, Haryana.
Mr. M.L. Sharma, Advocate with
Mr. Sunil K. Sharma, Advocate and
Ms. Meenakshi Sharma, Advocate
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::: Downloaded on - 24-01-2026 11:25:46 :::
RSA-1401-1987 (O&M) and two connected cases 2
for the respondents in RFA-2251-1987,
for respondents No. 3 to 13 in RSA-1401-1987 and
for respondents No. 1 to 11 in RSA-1402-1987.
VIRINDER AGGARWAL, J.
1. This order will dispose of two RSAs arising out of the same
judgment dated 12.01.1987 passed by learned Additional District Judge (I),
Gurgaon whereby the appeal filed by the respondents/defendants was allowed
and objection to the report of Sub-Judge on additional issues was dismissed,
as well as one RFA filed against the judgment dated 10.06.1987 passed by the
learned District Judge, Gurgaon.
2. Briefly stated, the predecessor of the appellant, Municipal
Corporation, Gurugram (substituted in place of Gram Panchayat Dundahera,
Tehsil and District Gurugram), filed a civil suit for declaration and possession,
claiming that the Gram Panchayat was the owner of the agricultural land
described in paragraph 1 of the plaint, measuring a total of 110 kanals and 2
marlas, situated in the revenue estate of Village Dundahera, Tehsil and District
Gurugram. The suit land was in possession of Defendant No. 3, Prem Dass @
Parveen Chela and Gulab Dass Chela, as dohlidars, who were granted the land
by the biswedars of Village Dundahera on the condition that Defendant No. 3,
and thereafter his predecessors-in-interest, would perform various religious
duties for the biswedars. In consideration of performing these duties, the suit
land was granted rent-free to the dohlidars. Being shamlat deh, the suit land
vested in the plaintiff/Gram Panchayat by operation of law. In 1958, Gulab
Dass, predecessor-in-interest of Defendant No. 3, submitted Form A to the
concerned authorities illegally and without any lawful right, claiming that the
suit land was surplus in his possession. Subsequently, in 1960, the Collector
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Agrarian, acting without jurisdiction, illegally declared the suit land as
surplus. The same land was then allotted to Defendant Nos. 4 to 14, who later
acquired tenancy rights under the provisions of the Haryana Ceiling on Land
Holdings Act, 1972, and got sanctioned mutations in their favour, which were
also illegal. The plaintiff/Gram Panchayat challenged these proceedings before
the Financial Commissioner, Haryana, contending that the declaration of the
land as surplus and its allotment to Defendant Nos. 4 to 14 were illegal, null,
and void, as no notice of the surplus proceedings was served on the plaintiff,
who was the recorded owner in the revenue records. The suit land, vested in
the Gram Panchayat as a local authority, is exempt from the operation of the
Land Ceiling Act and, therefore, could not have been declared surplus.
Moreover, land given to dohlidars in consideration of performing religious
duties is also exempt from the Land Ceiling Act. It is further submitted that
the predecessor-in-interest of Defendant No. 3 colluded with the authorities
and signed Form A without the knowledge or consent of the plaintiff/Gram
Panchayat, acting as the lawful owner, during the surplus proceedings. Since
the predecessor-in-interest of Defendant No. 3 has ceased performing the
religious duties for which the land was granted, they have forfeited all rights,
title, and interest in the suit land by their own act and conduct, and the
dohlidars rights stand extinguished.
3. Defendant No. 3 failed to contest the suit and was consequently
proceeded against ex parte. The remaining defendants/respondents contested
the suit by filing written statements, raising several preliminary objections.
These included objections regarding locus standi, the suit not having been
filed by an authorized person, non-service of notice under Section 80 of the
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Code of Civil Procedure, and that the Civil Court lacked jurisdiction. On
merits, it was specifically denied that the plaintiff was the owner of the suit
land, or that the land was given to the predecessor-in-interest of Defendant
No. 3 by the biswedars of Village Dundahera on the condition of performing
religious duties. It was also denied that the suit land was shamlat deh and
vested in the Gram Panchayat by operation of law. It was further pleaded that
Gulab Dass, being a large landowner, had rightly submitted Form A, the land
was validly declared surplus, and was lawfully allotted to defendant Nos. 4 to
14, who are in possession of the same as owners, having purchased the suit
land under the provisions of the Haryana Ceiling on Land Holdings Act, 1972.
It was denied that the plaintiff/Gram Panchayat was entitled to any notice
before the land was declared surplus, that the predecessor-in-interest of
Defendant No. 3 colluded with revenue authorities, or that the suit land was
exempted from the provisions of the Land Ceiling Act. Accordingly, the
defendants/respondents prayed for dismissal of the suit. Defendant Nos. 4 to
14, in their joint written statements, also raised the same preliminary
objections and adopted similar pleadings on merits.
4. In the replication to the written statements filed by the
defendants, the plaintiff/Gram Panchayat denied all the averments made
therein. On the basis of the pleadings of the parties, the following issues were
accordingly framed:
1) Whether the suit has been filed by a duly
authorised person ?OPP.
2. Whether the plaintiff is the owner of the suit
land? OPP
3. Whether the surplus proceedings declaring the
suit land as surplus land and consequentially its
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allotment to defendant No.4 to 14 is illegal, void
ineffective and without jurisdiction, as alleged? OPP.
4. Whether defendant No. 4 has ferefiether all his
rights, title and interest in the suit land, as alleged ?
OPP.
5. Whether the plaintiff has no locus standi to
sue?OPD.
6. Whether the suit is barred by limitation ?0PD.
7. Whether the suit is not maintainable? OPD.
8. Whether the Civil court has got no jurisdiction
to try the suit?OPD.
9. Relief.
5. In order to prove their respective cases, both parties were granted
opportunities to lead evidence. Evidence was duly led, and after hearing the
arguments, the learned Sub Judge, 1st Class, Gurgaon, decreed the suit in
favour of the plaintiff/Gram Panchayat, Dundahera.
6. Aggrieved by the judgment and decree passed by the learned Sub
Judge, 1st Class, Gurgaon, the appellants/respondent Nos. 4 to 14 filed an
appeal. During the pendency of the appeal, the appellants/respondent Nos. 4 to
14 filed an application under Order VI, Rule 17 of the CPC seeking
amendment of their written statement to raise the plea that they were bona fide
purchasers for consideration without notice. The application was allowed, the
amended written statement was taken on record, and the matter was remitted
to the learned Trial Court for framing of additional issues, permitting the
parties to lead evidence, and submission of the report on additional issues. The
learned Sub Judge, 1st Class, Gurgaon, framed the following additional issues:
x 8A: Whether Defendant Nos. 4 to 14 are bona fide transferees for
consideration, as alleged? OPD.
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x 8B: Whether the defendants are protected under Sections 41 and 53 of
the Transfer of Property Act? OPD.
7. After both parties led evidence on the additional issues, the
learned Sub Judge, 1st Class, Gurgaon, discussed Issues 8A and 8B together
and, vide report dated 28.08.1986, held that defendant Nos. 4 to 14, being
bona fide transferees for consideration, were protected under Sections 41 and
53 of the Transfer of Property Act. Accordingly, both issues were decided in
their favour. The Gram Panchayat filed objections against the report of the Sub
Judge on the additional issues, which were treated as a separate appeal. Both
appeals were heard, and the learned Additional District Judge, Gurgaon, vide
the impugned judgment and decree, allowed the appeal of the
appellants/defendants and dismissed the objections filed by the Gram
Panchayat.
8. Aggrieved by the judgment and decree so passed, the present
regular second appeals were preferred by the Gram Panchayat, Dundahera.
During the pendency of these appeals, the area under the jurisdiction of the
Gram Panchayat, Dundahera, was merged into the Municipal Corporation,
Gurugram, and accordingly, the Municipal Corporation, Gurugram, was
substituted as the appellant. Subsequent to the allotment of the suit land in
favour of defendant Nos. 4 to 14, the same land was acquired by the State
Government. In the proceedings for grant of compensation, the Gram
Panchayat, Dundahera, now represented by the Municipal Corporation,
Gurugram, filed objections and claimed compensation, which were dismissed.
Aggrieved by the order passed in the compensation proceedings, the Gram
Panchayat, Dundahera, preferred a regular first appeal. The said appeal has
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been clubbed with the regular second appeals already pending and is directed
to be disposed of through a common judgment.
9. Learned counsel for the appellant, Municipal Corporation,
Gurugram, contended that the impugned judgment and decree passed by the
learned First Appellate Court is not sustainable. It was submitted that the
learned First Appellate Court wrongly held that the order passed by the
competent authority declaring the suit land as surplus, without issuing notice
to the Gram Panchayat, Dundahera, is a voidable order and not a void order,
and, as such, the jurisdiction of the Civil Court is barred by limitation. The
findings of the learned Additional District Judge were based on the Full Bench
judgment of this Court in Letters Patent Appeal No. 572 of 1968, Dhaunkal
Vs. Man Kaur and another, decided on 10.04.1970, 1970 AIR (P&H) 431.
However, it was subsequently held that this is not good law in view of the
dicta of the Privy Council and the Hon'ble Supreme Court of India; therefore,
the findings recorded by the learned First Appellate Court are not sustainable
in this respect.
10. It was further contended that the learned First Appellate Court
wrongly observed that the dohlidars were the owners of the suit land under the
provisions of the Punjab Security of Land Tenure Act, 1953, and that the Gram
Panchayat, Dundahera, is not the owner of the same. The appellant also
assailed the finding of the learned First Appellate Court to the effect that the
dohlidars continue to have right, title, or interest over the suit property and
have not forfeited their rights. Additionally, it was contended that the learned
First Appellate Court wrongly held that the suit land vested in the State under
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Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972, and that
Sections 5 and 5A of the said Act are not applicable to the present case.
11. It was further argued that the findings on Issues Nos. 8A and 8B,
regarding the respondents/defendants being bona fide purchasers for
consideration, are not sustainable in view of the Full Bench judgment of this
Court in CWP-5662-1986, Smt. Niranjan Kaur and others Vs. The Financial
Commissioner, Revenue & Secretary to Government, Punjab and others,
decided on 16.07.2010, AIR (2011) Punjab and Haryana 1. On these grounds,
it was contended that both appeals should be allowed, the judgment and
decree of the learned First Appellate Court be set aside, and that of the learned
Sub Judge, 1st Class, Gurugram, be restored. It was further prayed that the
report submitted by the learned Sub Judge, 1st Class, Gurugram, on additional
issues be set aside. It was also contended that the order passed by the
authorities regarding the grant of compensation on acquisition of the land be
set aside, the regular Second Appeals and regular first appeal be allowed.
12. Learned counsel for the respondents contended that there is no
illegality, irregularity, or infirmity in the findings recorded by the learned First
Appellate Court. It was submitted that the learned First Appellate Court has
rightly held that the order passed by the competent authority declaring the suit
land as surplus, at the most, can be termed as voidable and not void. In such a
situation, the plaintiff could have approached the appropriate authority for
setting aside the order; however, instead of following the prescribed remedy,
the plaintiff filed a civil suit, which was rightly held to be not maintainable. It
was further contended that the learned First Appellate Court correctly held that
the dohlidars were the lawful owners of the suit property under the provisions
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of the Punjab Security of Land Tenure Act, 1953, and that the Gram
Panchayat, Dundahera, was not entitled to any notice of the surplus
proceedings. The rights, title, and interest of the dohlidars in the suit property
have not come to an end, and the respondents/defendants, being bona fide
purchasers for consideration, are entitled to the protection of their ownership
and related rights under law. Therefore, the learned counsel prayed that the
appeals and the regular First Appeal filed be dismissed.
13. The learned First Appellate Court recorded a finding that since
the suit land was in the possession of the predecessor-in-interest of defendant
No. 3 as a dohlidars, the dohlidars were the owners of the suit property under
the Punjab Security of Land Tenures Act, 1953, and, therefore, the Gram
Panchayat, Dundahera, was not entitled to any notice. It was further observed
that the material date under the provisions of the Punjab Security of Land
Tenures Act, 1953, is 14.04.1953, and on that date, the suit land was recorded
as Shamlat Deh and was in the possession of Gulab Dass as a dohlidar. It was
further held that the suit land vested in the plaintiff/Gram Panchayat,
Dundahera, only after the coming into operation of the Punjab Village
Common Lands (Regulation) Act, 1953, with effect from 09.01.1954.
Consequently, the suit land vested in the Gram Panchayat, Dundahera, only
from 09.01.1954, and mutation was sanctioned in its favour on 10.04.1955, as
is evident from Ex. PW-3/1, being the Jamabandi for the year 1955-56. On
this basis, it was concluded that on the relevant date, i.e. 15.04.1953, the Gram
Panchayat, Dundahera, was not the owner of the suit land.
14. For the proper adjudication of this controversy, certain other dates
are also material. The order passed by the Collector Agrarian, Gurugram, is
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RSA-1401-1987 (O&M) and two connected cases 10
dated 07.01.1960, as per Ex. P-4, and the land was allotted to defendant Nos. 4
to 14 under the Punjab Security of Land Tenures Act, 1953, on 18.06.1963.
Thus, it is evident that on the date when the impugned order declaring the suit
land as surplus was passed, the Gram Panchayat, Dundahera, was the recorded
owner of the suit land in the revenue record. The suit land had vested in the
Gram Panchayat, Dundahera, with effect from 09.01.1954, and the
proceedings for declaring the suit land as surplus were initiated only after the
land had so vested in the Gram Panchayat, Dundahera.
15. The learned First Appellate Court has further recorded a finding
that dohlidars are the owners of the suit land in view of the provisions of the
Punjab Security of Land Tenures Act, 1953. No doubt, for certain purposes
and proceedings, the rights of dohlidars are treated as equivalent to those of
owners of the suit land; however, a Division Bench of this Court has
categorically held that dohlidars can be ejected from the property in case they
fail to discharge the duties attached to their office.
16. In this regard, reliance was placed on RSA No. 904 of 1983,
Dharam Vir Vs. Bahadur Singh and another, decided on 25.08.2006,
reported as 2007 (2) RCR (Civil) 217. After relying upon the judgment of the
Division Bench of the Lahore High Court in Seva Ram Vs. Udegir, AIR 1922
Lahore 126, the following observations were made:
"The dohli tenure is a peculiar kind of tenure to be found in
the south-eastern districts of Punjab. It is a rent-free grant of a small
plot of land by the village community for the benefit of a temple,
mosque or shrine, or to a person for a religious purpose. In the
revenue records the proprietary body are recorded as the owners of
the property, and the grantee is recorded as a tenant in the column of
cultivation. So long as the purpose, for which the grant is made, is
carried out, it cannot be resumed, but should the holder fail to carry
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RSA-1401-1987 (O&M) and two connected cases 11
out the duties of his office, the proprietors can eject him and put in
some one else under a like tenure."
17. It was also observed that the principles laid down by the Lahore
High Court in Seva Ram (supra) continued to be followed in:
1. Khema Nand and others v. Kundan and another, AIR 1937 Lahore 805;
2. Tirkha and others v. Dwarka Parshad, 1972 Punjab Law Journal 614;
3. Baba Nand Ram v. Gram Panchayat of Village Malkos, 1976 Punjab Law
Journal 586;
4.Dharma v. Smt. Harbai, 1976 PLJ 617;
5. Dalip Singh and others v. Puran Dass and another, 1977 Punjab Law
Journal 178;
6. Dhani Ram and another v. Gram Sabha and Gram Panchayat of Village
Jatmalpur and others, 1984 Punjab Law Journal 234;
7. Sittal Dass and another v. Financial Commissioner Haryana and others,
1989 Punjab Law Journal 148;
8. Bhím Singh v. Dalip Singh, 1993(1) Recent Revenue Reports 606,
9. Lakshmi Chand v. Basanti alias Kailash, 2003(1) Recent Civil Reports
298: 2003(1) PLJ 321;
10. Ghisa Ram v. Surat Singh & Co., 2003(4) RCR (Civil) 23 (P&H):
2003(2) Punjab Law Journal 565;
11. Dharam Singh and others v. Smt. Phullan Devi and others, 2005 (3)
RCR (Civil) 832 (P&H): 2005(3) Punjab Law Reporter 175:
12. Dev Dutt and others v. Gram Panchayat Ranila, 1993(3) RRR 54
(P&H): 1993 PLJ 437 (SB) Para 8.
18. In the present cases, it cannot be concluded that the dohlidars
permanently left the village or ceased to perform the duties in lieu of which
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RSA-1401-1987 (O&M) and two connected cases 12
the property was allotted to the dohlidars. Therefore, it cannot be held that the
right, title, or interest of the dohlidars in the suit property stood extinguished.
However, on the basis of the authorities cited above, it also cannot be
concluded that the Gram Panchayat, Dundahera, in whom the suit land had
vested as owner and which was so reflected in the revenue record lost every
right over the suit land merely on account of the dohli created in favour of the
predecessor-in-interest of defendant No. 3.
19. On the contrary, the authorities clearly spell out that the owner
retains certain rights over such land, and that the rights of a dohlidar can be
extinguished if the dohlidar fails to perform the duties in lieu of which the
land was allotted. Thus, the landowner retains rights over the land, and all
such rights are not extinguished by the creation of a Dohli.
20. The Gram Panchayat, Dundahera, being the recorded owner of
the suit property at the time of commencement of the proceedings for
declaring the suit land as surplus, was certainly entitled to notice as required
under Rule 6(3) of the Punjab Security of Land Tenures Rules, 1956.
Admittedly, no such notice was served upon the Gram Panchayat. The
question that now arises is whether such proceedings are void or merely
voidable. The learned First Appellate Court recorded a finding that, in view of
the Full Bench judgment of this Court in Dhaunkal's case (supra), the
proceedings conducted without notice would be voidable. The conclusion was
recorded as under:
"Where a decree or order is void, it is nonest, and may
be ignored altogether, but, when it is voidable, the aggrieved
party has to proceed to get rid of it in accordance with law,
and where it fails to do so, it being within jurisdiction remains
and the party is them not in a position to say that it is nonest.
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RSA-1401-1987 (O&M) and two connected cases 13
When the surplus area collector had the jurisdiction to decide
the question of surplus area, if any, with the land owner, and
he has committed breach of statutory rules in not hearing the
tenant, the breach does not render the order of the surplus
Area Collector void or a nullity but only voidable and liable
to be quashed or set aside at the instance of the aggrieved
party i.e. the tenant. It is an order ex parte made in the
absence of the tenant which does not bind the tenant
insasmuch as the tenant could by a move in the proper forum
have it readily set aside or quashed, but if inspite of having an
opportunity to quashed according to law he fails to do so,
either because he does not move against the order at all even
after knowledge, or because he moves against it after the
expiry of time prescribed by law within which he must move,
then such an order cannot be treated as non-existent in law.''
21. On the basis of this law, coupled with the judgments of the
Division Bench of this Court in AIR 1975 (Punjab & Haryana) 369 and AIR
1972 (Punjab & Haryana) 232, it was concluded that the order in question is
not void and is at the most voidable.
22. Counsel for the appellants relied upon the subsequent Full Bench
judgment of this Court in State of Haryana and others vs. Vinod Kumar and
others, 1986 PLJ 161, wherein it was observed that the judgment in Dhaunkal
(supra) had been impliedly overruled by the Apex Court in Katikara
Chintamani Dora vs. Guatreddi Annamanaidu, AIR 1974 SC 1069. The
relevant portion of the judgment was concluded as follows:
There is an express bar to the jurisdiction of
the Civil Court to adjudicate upon the question whether 'any
in am village' is an ín am estate or not, and to the extent of the
question stated in Section 9(1) Madras Act 26 of 1948, the
jurisdiction of the Settlement Officer and of the Tribunal are
exclusive. But this exclusion of the jurisdiction of the Civil
Court would be subject to two limitations. First the Civil
Courts have jurisdiction to examine into cases where the
provisions of the Act have not been complied with or the
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RSA-1401-1987 (O&M) and two connected cases 14
statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure. The second is as
regards the exact extent to which the powers to statutory
tribunals are exclusive."
23. In paragraph No. 8, the Full Bench of this Court held that where
there is a statutory violation of the provisions of the Act, a suit challenging an
order passed by the competent authority cannot be barred under Section 25 of
the Punjab Act. The relevant paragraph is reproduced below:
"Though according to the rule laid down in Amar
Singh's case (Supra) respondents had not right to file either
an appeal or a petition for review or revision against the
impugned order of the Collector to which they were not
parties, but even if it may be accepted for the sake of
arguments that that they could file appeal with the permission
of the Appellate Authority or move for review even then it
cannot be said that concurrent or alternative remedy of filing
a suit for getting the declaration that the impugned was
nonest so far as they were concerned would be barred by the
provisions of the saidi Section 25 of the Punjab Act. It is well
established that in the case of alternative or concurrent
remedies it is open to the party to choose anyone of them. The
existence of the remedy under the Act, if any, therefore, would
not bar the remedy of the suit if it otherwise was available to
the respondents. Not a single case could be cited by learned
counsel for the State at the bar wherein it may have been held
that the remedy of suit by a person who is not a party to the
order nor has been served with any notice, for declacation
that such an order was nonest so far as he was concerned was
held to be barred even though the validity and legality of the
orders passed were expressly stated to be not open to
challenge under the statute. All the decisions relied upon by
the learned counsel for the State were such in which the suit
was filed by the person who was a party before the Tribunal
of exclusive jurisdiction. The observations made in all those
decisions, therefore, have to be understood in the contest of
the situation available there and in none of these decisions, as
observed in Dhaunkal Sheo Ram's casel AIR 1970 Punjab and
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RSA-1401-1987 (O&M) and two connected cases 15
Haryana 431) (FB) (supra) the rule laid down in Mask Co's
case (supra) was adversely commented upon. We would,
therefore, hold that the present suit was not barred by the
provisions of Section 25 of the Punjab Act and answer the
question referred to Full Bench in the affirmative."
24. Subsequently, the same principle was followed by this Court in
RSA-1012-1991, Chhabil Dass and others vs. Hem Raj and others, decided
on 08.03.2018, 2018 (3) RCR (Civil) 800; RSA-2019-1991, Tansukh vs. State
of Haryana and others, decided on 29.05.2024, 2024 NCPHHC 77399; and
RSA-367-1999, Smt. Khazani and others vs. State of Haryana and others,
decided on 13.02.2025, 2025 NCPHHC 20471. The Full Bench judgment
relied upon by the learned First Appellate Court is no longer considered good
law. It is now settled that a Civil Court has no jurisdiction where there is a
violation of statutory provisions of the Act in passing the impugned order. In
the present case, it is duly established on record that the order declaring the
suit land as surplus was passed by the competent authority without issuing any
notice to the Gram Panchayat, Dundahera, which was recorded as the owner
of the suit land in the revenue records at the commencement of the
proceedings. Accordingly, the findings recorded by the learned First Appellate
Court are unsustainable and liable to be set aside.
25. As regards the suit land in the hands of Respondent Nos. 4 to 14,
being protected under Section 41 of the Transfer of Property Act, and the
respondents being bona fide purchasers for consideration, is concerned the
learned First Appellate Court has recorded its findings in paragraph No. 23 of
the impugned order, which reads as under:
"23. The learned counsel appearing for plaintiff
Gram Panchayat challenged the findings of the
learned trial court on additional issue Nos. 8-A and 8-
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RSA-1401-1987 (O&M) and two connected cases 16
B, which were rendered by the learned trial court in its
report dated 28.8.86, which was called upen by Shri
B.R.Vohra, Additional District Judge, Gurgaon, in his
order dated 6.6.86, while allowing the application of
defendant Nos. 4 to 14 to amend the written statement.
It was submitted that the learned trial court decided
the additional issue Nos. 8-A and 8-B wrongly, in as
much as, neither defendant Nos. 4 to 14 could have
been termed as bonafide transferee, nor defendant
Nos. 4 to 14 were protected under Sections 41 and 53
of the Transfer of Property Act. Reliance was placed
on 1986 P.L.J 354-Balvinderiit Kaur Vs. Financial
Commissioner Appeals. However, I find no force in
this submission of the learned counsel for plaintiff-
respondent Gram Panchayat. The order declaring the
suit land as surplus was passed by the Collecter
Aggrarian on 7.1.1960. Subsequent thereto, the suit
land was duly utilized by the State Government in as
much as, the same was allotted to defendant Nos. 4 to
14 on 18.6.63. Thereafter, defendant Nos. 4 to 14 made
an application in U.S.2-form on 25.7.1976 to the
competent authority, as a result of which, the
certificates of allotment in Form US-3 were issued in
their favour and thereafter, the defendant Nos. 4 to 14
had deposited the entire amount of instalments
amounting to 15450/- on 21.1.1977, as a result of
which, the sale deeds Ex D4W1/A te Ex, D4W1/C were
issued in their favour. The above said proceedings had
taken place in pursuance of Haryana Utilisation of
Surplus Area Scheme, 1976, Thus, so far as defendant
Nos. 4 to 14 are concerned, they are certainly
bonafide purchasers for consideration of the suit land
from the State Govt. who was the ostensible owner of
the suit property, inasmuch as, the suit land was
declared as surplus on 7.1.1960 and by virtue of
coming into force of the Haryana Ceiling on Land
Holdings Act, 1972, the surplus land had vested in the
Government and thereafter, the defendant Nos. 4 to 14
had purchased the suit land from the State
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RSA-1401-1987 (O&M) and two connected cases 17
Government, in pursuance of Haryana Utilisation of
Surplus Area Scheme, 1976. Under these
circumstances, in my opinion, the defendant Nos. 4 to
14 are certainly protected under the provisions of
Sections 41 and 53 of the Transfer of Property Act. In
my opinion, no fault can be found with the findings of
the learned trial court on additional issues Nos.8-A
and 8-B. The authority 1986 P.L.J. 354 (Supra), relied
upon by the learned counsel for plaintiff-respondent
Gram Panchayat, in my opinion, would not apply to
the facts of the present case, in asmuch as, in the
reported case, the transferees had purchased the suit
property during the pendency of the suit and the said
transfer was hit by the doctrine ef lis-pendens.
However, the facts of the present case are entirely
different and no litigation was pending at the time
when defendant Nos. 4 to 14 had purchased the suit
property from the State Govt, with whom the suit
property had vested under the Provisions of law.
Accordingly, I affirm the findings of the learned trial
court on additional issue Nos.8-A and 8-B."
26. The position regarding the defendants as bona fide purchasers for
consideration has been settled by the Full Bench of this Court in Niranjan
Kaur's case (supra), wherein it was held as follows:
"28 .........
Before considering the respective contention of the
parties, it may be noticed that the provisions of Section 41 of
the Act are not applicable to the States of Punjab, Haryana
and U.T. Chandigarh, i.e. in respect of the area over which
this Court exercises territorial jurisdiction. It is equally well
settled that even if the provisions of the Act are not
applicable, the principles of the Act which are in consonance
with equity, Justice and good consciousness will be
applicable. With the said background, Section 41 of the Act
reads as under:
"Where with the consent, express or implied, of the persons
interested in immovable property, a person is the ostensible
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RSA-1401-1987 (O&M) and two connected cases 18
owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the
ground that the transferor was not authorised to make
it:provided that the transferee, after taking reasonable care to
ascertain that the transferor had power to make the transfer,
has acted in good faith."
Thus, the following are the ingredients of Section 41 of the
Act, which are required to be satisfied before the benefit of
purchase in the case of sale by a person who is not the owner
is given to the purchaser:
(i) that the transferor is the ostensible owner;
(ii) he is so by the consent, express or implied, of the real
owner;
(iii) the transfer is for consideration; and
(iv) that transferee has acted in good faith, taking
reasonable care to ascertain tha transferor had power to
transfer.
Even if the benefit of 3rd and 4th ingredient is granted
to the purchaser in the present appeal, the question is whether
the 1st and 2nd ingredient is satisfied by the appellant. The
first and foremost ingredient is that the transferor is
ostensible owner. The allotment in favour of transferor has
been set aside. The cancellation of allotment can be on
account of fraud or for any other reason. The transferor loses
title from the date of allotment and not from the date of order.
The transferor by virtue of the original alltoment can be said
to be permissible user of the land before the allotment was
cancelled but such transferor cannot be said to be ostensible
owner as the ownership itself has been set side either as a
result of fraud or for some other irregularity. The transfer in
favour of the transferor was invalid and void from the date of
transfer though factum of fraud or irregularity came to the
notice of the real owner (Central Government) subsequently.
Therefore, it cannot be said that the transferor of the
appellant was the ostensible owner.
Once the allotment is cancelled, such cancellation is
not prospective ie., from the date of order, but as if allotment
was never made. A Full Bench of this Court in Balwant Kaur
v. Chief Settlement Commissioner(Lands) Punjab, 1963
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RSA-1401-1987 (O&M) and two connected cases 19
Punjab Law Report, 1141, has held that the Chief Settlement
Commissioner is competent to cancel or set aside the order of
transfer if the sanad is granted or the sale deed has been
executed. It has been held that on such order being made,
sanad or sale deed will automatically fall with it. The
majority has upheld the earlier judgment of Division Bench of
this Court reported as Bara Singh v. Joginder Singh, 1959
PLR 127. The majority opinion reads as under:-
"49. As regards the second additional ground, the
learned Judges have not given any reasons for the same.
Moreover, I have already held above that the sale-deed was
not, in any way, independent of the order of transfer. If the
order of transfer is reversed, the sale-deed must automatically
go with it. Of course, title is created by the execution of the
sale-deed, but if the transaction behind the deed is set aside,
the deed has got no value in the eye of law. Just as under the
Civil Procedure Code when the sale is set aside, the sale
certificate automatically goes and is a waste paper, similar is
the case of a sale-deed or a sanad, when the order of transfer,
on the basis of which the sale deed or sanad was granted, is
reversed."
27. The same law was followed by the Division Bench judgment in
CWP-286-2012, Ishar Singh and another Vs. Director, Rural Development
& Panchayat, Punjab and others, decided on 30.08.2012, 2012 (67) RCR
(Civil) 933 wherein it has been held as under:
"8. The petitioners claim that as they purchased the land, in
dispute, from a proprietor after an order of partition was
passed by the Director Consolidation, they are bona fide
purchasers and should, therefore, be protected. The order
passed by the Director Consolidation was without jurisdiction
and 'void-ab-initio. The foundation of the sale deed, is a void
order, passed on an illegal assumption of jurisdiction and,
therefore, does not divest the Gram Panchayat of its rights, or
confer rights upon the petitioners as bona fide purchasers."
28. In CWP-5661-1984, Gram Panchayat, Johar Majra through
Nar Singh, Panch vs. Union of India, decided on 21.12.1995, 1996 PLJ 167,
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RSA-1401-1987 (O&M) and two connected cases 20
a Division Bench of this Court held that land purchased by petitioners from
persons with defective title, who were not entitled to claim the land in any
manner, could not confer any valid rights, as the lands were held to be vested
in the Gram Panchayat. Allotments made to persons who had migrated were
held void, as the title had never vested in the custodian.
29. In the present cases, since the proceedings declaring the suit land
as surplus are held to be void, and the order Ex. P-4, whereby the suit land
was declared surplus and subsequently allotted to Defendant Nos. 4 to 14,
cannot survive, the subsequent allotment also fails. Consequently, Defendant
Nos. 4 to 14 cannot be regarded as bona fide purchasers for consideration. At
most, they may be entitled to claim compensation from the competent
authority that allotted the land based on illegal proceedings, declaring it
surplus and available for allotment. Accordingly, the impugned judgment and
decree of the learned First Appellate Court is unsustainable and is hereby set
aside. Both appeals filed by the Municipal Corporation, Gurugram are
allowed, the suit of the plaintiff is decreed, and the findings of the learned
First Appellate Court declaring the surplus proceedings as legal and valid, and
declaring Defendant Nos. 4 to 14 as bona fide purchasers entitled to protect
their interest in the suit property, are reversed. The Regular First Appeal filed
by the appellant/Municipal Corporation, Gurugram, is also allowed, and the
impugned order denying the claim of the Municipal Corporation is set aside.
30. A photocopy of the order be placed on the file of other connected
cases.
(VIRINDER AGGARWAL)
23.01.2026 JUDGE
kv Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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