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State Of Punjab & Another vs Air Vice Marshal Harbans … on 23 April, 2014

Punjab-Haryana High Court State Of Punjab & Another vs Air Vice Marshal Harbans … on 23 April, 2014

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

RSA No.3847 of 2010 (O&M)

Date of decision: 23.04.2014

State of Punjab & another

—–Appellant(s)

Vs.

Air Vice Marshal Harbans Parminder Singh & others —–Respondent(s)

CORAM:- HON’BLE MR. JUSTICE RAKESH KUMAR GARG

1. Whether reporters of local newspapers may be allowed to see judgment?

2. To be referred to reporters or not?

3. Whether the judgment should be reported in the Digest?

Present: Mr. Vishal Garg, AAG, Punjab for the appellants.

Mr. R.D. Sharma, Advocate for the respondents. ***

RAKESH KUMAR GARG, J.

This is defendants’ second appeal challenging the

judgments and decrees of the Courts, whereby the suit filed by the

plaintiffs was decreed by the trial Court vide judgment and decree

dated 9.11.2005 and the appeal against the aforesaid judgment

and decree of the trial Court was dismissed by the lower Appellate

Court vide judgment and decree dated 16.9.2009.

The brief facts of the case are that the plaintiff-

respondent Lt. Col. Harbans Singh purchased land in Village

Daulatpur out of khasra No.109 from Thakur Kesho Dass

measuring 4 kanals vide sale deed dated 11.3.1956. Vide another

sale deed dated 19.4.1956, he purchased another plot 4 kanals out

Kumar Ashwani

2014.04.28 11:19

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.3847 of 2010 2

of same khasra number from the same vendor. After the sale, he

was put in possession of the property. The mutation was

sanctioned and khasra No.109/3/1 measuring 4 kanals was carved

out. Similarly, vide another mutation, another Khasra No.109/3/2

was carved out. Harbans Singh died on 19.10.1993. Property was

inherited by the plaintiff Parminder Singh. Now, the total property

bears khasra No.329 measuring 8 kanals. The defendants were

interfering in the peaceful possession of the plaintiff. So, he filed a

civil suit for permanent injunction having No.368/85, which was

decided on 26.10.1987. In that suit, the defendants admitted the

plaintiff to be in exclusive possession as owner. They made

statement that they will not dispossess him except in due course of

law. There was specific issue in that case regarding which the

findings were returned in favour of plaintiff no.1. Now, these

findings have not been challenged by the defendant-appellants.

So, they have become final. Now, defendants are alleging that

there is mutation No.1476 sanctioned in favour of defendant no.1

and that they have become owners as per the jamabandi. The

mutation is illegal, null and void. The defendants allege that there

is some notification issue qua the land in dispute. At the time of

the previous owner, no notification was ever issued to Kesho Ram.

No compensation has either been tendered or paid to the plaintiff.

Now, the defendants are out to interfere in the property of the

plaintiffs to which they have no right.

Kumar Ashwani

2014.04.28 11:19

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integrity of this document

High Court Chandigarh

RSA No.3847 of 2010 3

Upon notice, defendants appeared and filed written

statement contesting the suit, raising various preliminary

objections. On merits, they denied that the suit land was owned by

the plaintiffs. It was stated that the suit land has been acquired vide

notification dated 2.7.1959 for construction of I.T.I., Pathankot. It

was further averred that objections were invited from owners and

the government had paid compensation for the land acquired to the

owners after completing all the formalities and if the plaintiffs were

having any right in the same, then they should have raised

objections and thus, now they cannot agitate the matter, as the

land has been acquired. It was further stated that mutation has

also been sanctioned in their favour.

On the basis of pleadings of the parties, following

issues were framed:-

“1. Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP

2. Whether the suit is not maintainable in the present form? OPD.

3. Whether the notice u/s 80 CPC is not legal and valid? OPD

4. Whether the plaintiffs have no cause of action to file the present suit? OPD

5. Relief.”

After hearing counsel for the parties and going through

the record, the trial Court decreed the suit holding that the plaintiffs

were owners in possession of the suit property and the entry in the

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integrity of this document

High Court Chandigarh

RSA No.3847 of 2010 4

revenue record showing provincial Government to be the owner

and ITI College being in possession of the suit land, was incorrect.

Aggrieved from the aforesaid judgment and decree of

the trial Court, the defendants preferred an appeal before the first

Appellate Court which was dismissed vide judgment and decree

dated 16.9.2009. While dismissing the appeal, the lower Appellate

Court observed as under:-

“After going through the record and considering the arguments, I find that in the Notification regarding the acquisition of the land, there in no mention of Khasra No.109/3/1 and 109/3/2. Khasra No.109 has been mentioned. It is further clear that both these khasra numbers have been changed into khasra No.329. The other stand has been taken by the appellants-defendants that the land was donated by Kesho Ram but there is no record of the same. Now, I find that in the previous suit, the plaintiff was held to be co-owner in possession of the suit-property. That finding has not been challenged and the same has attained finality. Moreover, there is nothing on the record to show that the possession has been taken by the appellants from the respondents in due course of law. As per this technical reason, the plaintiff is still co-owner in joint possession of the property. The land has been acquired in Khasra No. 109 but the present suit-land falls in khasra No.109/3/1 and 3/2 and a new khasra number 329 has been carved out. It is clear that when the possession is taken then there is report in the Roznamcha of the Patwari. No roznamcha has been proved on the

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High Court Chandigarh

RSA No.3847 of 2010 5

file. Accordingly, there is nothing on the record to show that property in dispute was ever acquired by the appellants-defendants. So once it is proved that the property was never acquired, so there is no question of any mutation in their favour. Accordingly, I find that entries in the Jamabandi repeated by mistake. The reliance can be placed on A.I.R 1999 Supreme Court 1823 with the title Pawan Kumar Gupta Vs. Rochiram Nagdeo. wherein it was held as under:-

“Civil Procedure Code (5 of 1908). S.11- Resjudicata- Dismissal of earlier suit on account of extinguishment of cause of action or any other similar cause – Decision made in said suit on vital issue involved there in- Operate as resjudicata in subsequent suit between same parties-Fact that defendant did not file appeal against said decision- Cannot avert the bar of resjudicata”.

Accordingly I find no reason to interfere in the well reasoned judgment dated 9-11-2005 passed by the Ld. Civil Judge, Junior Division and the appeal is dismissed with costs. Decree-Sheet be drawn. Lower court records be retuned forthwith and appeal file be consigned to the record-room.

Still not satisfied, the defendants-State and its

instrumentality have filed the instant appeal submitting that

following substantial questions of law arise in this appeal for

consideration of this Court:-

i) Whether the jurisdiction of the Civil court is ousted to a land which stands acquired under the Kumar Ashwani

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integrity of this document

High Court Chandigarh

RSA No.3847 of 2010 6

Provisions of Land Acquisition Act?

ii) Whether in view of the provisions of Section 30 as well as Section 54 of the Punjab Land Acquisition Act, the dispute was to be raked up before the forum provided under the Act and not otherwise?

iii) Whether once the property has been acquired under the Land Acquisition Act, then, the aggrieved party is also bound to take recourse under the Provisions of the said Act? iv) Whether the non-consideration of the revenue record exhibited on record led the Court to give contrary judgment?

v) Whether the findings with regard to the khasra no. 109/3/1 and 109/3/2 being not part of khasra no. 109 are contrary to revenue record? vi) Whether filing of the suit for declaration in 1999 with regard to the cause of action in 1959 is time barred?

vi) Whether non-consideration of the material documents/ statements by the courts below rendered the judgment erroneous and perverse?

Noticing the contentions raised on behalf of the

appellants, this Court passed following order in this appeal on

8.4.2011:-

“Learned counsel for the appellant inter alia contends that jamabandi for 1944-45 was the last jamabandi in existence before the suit land was acquired in the year 1959 and in that jamabandi, name of plaintiffs’ predecessor Harbans Singh vendee had not been recorded and compensation was paid to the

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High Court Chandigarh

RSA No.3847 of 2010 7

persons who were recorded as owners of the suit land in jamabandi.

Notice of motion for 20.7.2011.”

At this stage, it may further be noticed that there is no

record to show that the land in dispute was ever acquired and

possession was ever taken by the appellants from the plaintiff-

respondents. In fact, before this Court, the only argument raised

on behalf of the appellant-State is that the simpliciter suit for

declaration without seeking any consequential relief is not

maintainable. In support of his case, learned counsel for the

appellants has relief upon a judgment of Hon’ble the Supreme

Court in the case of Venkataraja and others v. Vidyane

Doureradjaperumal (D) Thr. LRs and others 2013 (4) JT 505.

However, the observations of Hon’ble the Supreme Court in the

aforesaid case were made in the facts and circumstances of that

case, wherein the plaintiff was not in possession of the suit

property, whereas in the instant case, the plaintiff-respondents are

in possession of the suit property.

At this stage, it may also be noticed that on previous

dates, the appellant-State has also claimed possession of the suit

property and in view of the stand taken by both the parties, this

Court had passed following order on 12.3.2013:-

“Both the parties are claiming possession of the suit land in their favour.

Let the contesting parties file affidavit in this regard.

Kumar Ashwani

2014.04.28 11:19

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integrity of this document

High Court Chandigarh

RSA No.3847 of 2010 8

List on 31.3.2014.

To be shown in the urgent list.”

In pursuance of the aforesaid order, an affidavit has

been filed on behalf of the plaintiff-respondent, specifically stating

that he was in possession of the suit land, whereas in the affidavit

filed by Shri Harish Mohan, Principal, ITI, Pathankot, on behalf of

the appellants, it has been stated that the suit land is open and

vacant piece of land and is being used as a thoroughfare. It may

further be noticed that there is no dispute with regard to ownership

of the suit land which vests in the respondents. It is well settled

that possession of a vacant plot is always deemed to be with the

owner unless otherwise proved. Though on the earlier dates,

appellants insisted that they were in possession of the suit land, yet

in the affidavit, no such submission has been made and it has been

admitted that the suit land is lying vacant and in view thereof, the

argument raised on behalf of the appellants that the simpliciter suit

for declaration without seeking any consequential relief is not

maintainable, is misconceived and liable to be rejected.

No other point has been argued.

Thus, no substantial question of law arises in this

appeal.

Dismissed.

April 23, 2014 [RAKESH KUMAR GARG] ak JUDGE

Kumar Ashwani

2014.04.28 11:19

I attest to the accuracy and

integrity of this document

High Court Chandigarh

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