w w w . L a w y e r S e r v i c e s . i n


    Decided On, 08 August 1990

    At, High Court of Punjab and Haryana


    For the Appearing Parties: A.P. Bhandari, Dinesh Kumar, Harinder Kumar, J.C. Verma, Advocates.

Judgment Text

(1) THIS revision petition is directed against the order of the trial Judge, whereby he negatived the plea of the defendant-petitioner that the Civil Court had no jurisdiction to entertain the suit.

(2) BISHAN Dass, respondent plaintiff, came to the Court with the plea that he was owner-in-possession of House No. 5-A/56, N. I. T. , Faridabad and had been in continuous possession of the property adjacent thereto, but defendant No. 1 with the help of defendant No. 2 was out to dispossess him. The allotment by defendant No. 2 in favour of defendant No. 1 was illegal.

(3) DEFENDANT No. 1 in his written statement maintained that the plot in suit had been transferred to him vide Certificate of Conveyance issued under Rule 118 of the Displaced Persons (Compensation and Rehab

Please Login To View The Full Judgment!

litation) Rules, 1955. He produced a copy of the Deed of Indenture in the trial Court giving the description and boundary of the plot sold to him. Copy of the Conveyance Deed was also produced before me. Perusal thereof reveals that the Deed of Conveyance was executed by Tehsildar (Sales)-cum-Managing, Officer, Faridabad, in favour of respondent No. 1 and the same was registered by the Sub-Registrar, Faridabad on August 6, 1985. The plaintiff's grouse that the transfer was invalid could not be assailed in the Civil Court. The remedy, if any, Jay before the authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, the Act ). Section 46 of the Act reads as under :-" 36. Bar of jurisdiction.--Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. "(4) THE plea taken by the plaintiff in para 2 of the plaint reads as under:-" that the total adjacent land in between the house of the plaintiff and that of the defendant No. 1 is 64 Sq. yards and the plaintiff is entitled to purchase half of the same i. e. 32 Sq. yards from the defendant No. 2 as per the rules and regulation of the same According to the policy of defendant No. 2 and the Town Planning Committee, it was clear and is prevailing at present also that the every adjacent land shall be given to the owner of the house as first preference to the extent of his due share in the same. Since according to law, the area of the adjacent land measuring 32 Sq. yards in question has to be allotted only to the plaintiff, the plaintiff raised a boundary wall of pucca bricks around the adjacent land and has grown trees therein and has been using the same for his residential purposes alongwith his house. The claim of the plaintiff over the adjacent land in question is absolutely to purchase the same and none else can exercise the same right. " This plea indicates that the plaintiff has made a grouse against the transfer of plot to defendant No. 1 which grouse could not be made in the civil suit in view of the bar created by Section 36 of the Act.(5) SOMEWHAT identical matter came up for consideration before the Allahabad High Court in Mohd. Sher Khan and Ors. v. Shafi Ullah and Anr. , A. I. R. 1981 All. 133, wherein it was held thus :-" where the Managing Officer under an erroneous view put to auction and sold the composite property of evacuee and non-evacuee treating it as an evacuee property forming part of the compensation pool and when no objection was raised to that sale on behalf of the non-evacuee co-sharer in accordance with the provisions of the Act, then the matter regarding the validity of sale or about the lack of the title in respect of the entire property would not be agitated further by any one claiming through the alleged non-evacuee in the civil suit. That error could only be corrected through an appeal or revision provided in Chapter IV of the Act or a petition under Article 226 of the Constitution of India. "(6) THE ratio of the judgment (supra) is fully attracted to the facts of the instant case. The order of the trial Judge is patently illegal. It was passed in ignorance of the statutory provisions of Section 36 of the Act. The question being one of jurisdiction can be raised in a petition under Section 115 of the Code of Civil Procedure.(7) THE learned counsel for the respondents, in support of his submission that the Civil Court has the jurisdiction to entertain the suit, placed reliance upon Hira Singh and Anr. v. Darbara Singh and Ors. , A. I. R. 1964 Punj 447; Kali Ram and Ors. v. Union of India and Ors. , (1976) 78 P. L. R. 475 and Ishar Dass and Ors. v. Smt. Chetani Bai, (1970) 72 P. L. R. 17.(8) IN Hira Singh's case (supra), the plaintiffs in the suit bad only sought a declaration that he had a share in the claim property and that the first defendant fraudulently got their claim verified in his own and another's name to the exclusion of the plaintiffs. On these premises, it was held that as a question of title was involved, the Civil Court had jurisdiction to entertain the suit. The ratio of this judgment has no bearing to the facts of the instant case.(9) IN Kali Ram's case (supra), the allottees had transferred the property to third person. The allotment was cancelled by the Chief Settlement Commissioner. The transferees from the allottee wanted to raise a plea that they were entitled to claim the protection of the provisions of Section 41 of the Transfer of Properly Act. This Court held that the transferees from the allottee were entitled to claim the protection of the said provision. The ratio of this judgment has also no bearing to the facts of the instant case.(10) IN Ishar Dass's case (supra), the facts, briefly, were that three brothers, namely, Lala Ram, Girdhari Lal and Niranjan Dass, sold some agricultural land held by them in the revenue estate of village Somina in district Dera Ghazi Khan (now forming part of the territory in Pakistan ). The sale was made in favour of the defendants Ishar Dass, Fatu Ram and Kaura Ram, who are brothers. Two pre-emption suits were brought--one by Chetani Bai wife of Girdhari Lal and the other by Smt. Sobhan Bai. The suits were decreed on payment of Rs. 766/10/8 in each case. Both the pre-emptors deposited the money in Court and the vendees realised the amount. The warrants for possession were issued, but the possession could not be obtained by the pre-emptors till the time of partition. After the parties migrated to India after August 1947, the vendees made claim for the properties, which bad been decreed against them in the pre emption suits. They were allotted land and the permanent allotment was made to them on September 3, 1955. Smt. Chetni Bai and Smt. Sobhan Bai brought suits for declaration and possession of the lands, which had been finally allotted to the defendants (vendees in the pre-emption suits), on April 3, 1957. The suits were contested by the defendants vendees. The trial Court dismissed the suits broadly on the ground that they were barred by time. On appeal the judgment of the trial Court was reversed by the first appellate Court and the suits were decreed. In second appeal in this Court, objection was raised as to maintainability of the suit in the Civil Court. This objection was overruled principally on the ground that there was no specific provision in the Act which vested power in the Central Government to decide the dispute which had arisen in the case. The ratio of this judgment has not the remotest bearing to the facts of the instant case and these are distinguishable.(11 ) CONSEQUENTLY, the revision petition is allowed and the order under challenge is set aside. There, will be no order as to costs.

Already A Member?