Bhopal vs Thakur Jatinder Singh

R.N. Mittal, J. (Oral)

This second appeal has been filed by defendant No. 1 against the judgment and decree of the Additional District Judge, Hissar dated 30th November, 1974.

Briefly the facts are that the plaintiff was a big landowner. He was owner of the land in dispute. Defendant No. 1 was his tenant. Defendant No. 1 filed an application under section 18 of the Punjab Security of Land Tenures Act, 1953 before the Assistant Collector Ist Grade, Fatehabad for purchasing the land. The application was allowed by him vide order dated 11th August, 1969. It is averred that the said order is illegal, void and without jurisdiction for the reason that Bhopal defendant No. 1 was not a tenant on the land for six years and that the land was under the possession of Forest Department. Consequently he sought a declaration that the order of the Assistant Collector was illegal, void and ineffective. It is also alleged that defendant No. 1 sold some land in favour of defendants Nos. 2 to 4.

The suit was contested by defendant No. 1 who inter alia pleaded that the impugned order was a valid order and that the plaintiff had withdrawn the first instalment deposited by him and, therefore, the plaintiff was estopped from challenging the said order. Some other pleas were also taken but they do not survive in second appeal.

On the aforesaid pleas the following two issues were framed :

(1) Whether the order dated 11.8.1969 of the Assistant Collector Ist Grade, Fatehabad is null and void? OPD.

(5) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD

The trial Court held that the impugned order was not void and that the plaintiff was estopped by his act and conduct from filing the suit.

Consequently it dismissed the suit.

In appeal by the plaintiff the Additional District Judge upset the finding of the trial Court on the aforesaid issues. Consequently he accepted the appeal and decreed the suit of the plaintiff. Defendant No. 1 has come up in second appeal to this Court.

The main question that arises for determination is whether the impugned order is void. The learned counsel for the appellant has argued that the order was challenged by the plaintiffrespondent on two grounds, namely, that the appellant did not remain in possession of the land for 6 years and that the land was taken possession of by the Forest Department and it was released in the year 1965. However, the Additional District Judge held the order to be void on the grounds firstly, that the date of institution of the application under section 18 was not known and, therefore, it could not be held that the appellant remained in possession of the land as tenant for more than 6 years, secondly, the surplus area case of the plaintiffrespondent had not been decided and thirdly, that the land was taken possession of by the Forest Department vide notification, Exhibit P.1, that it remained in their possession upto the year 1965 and, therefore, the appellant did not remain as tenant for 6 years. On the other hand, Mr. Nehra, learned counsel for the respondent, has vehemently argued that in an application under section 18 it was the duty of the appellant to prove that he remained tenant for a period of 6 years and that the land sought to be purchased was not reserved area of the respondent. He submits that the appellant failed to prove the ingredients.

I have duly considered the arguments of the learned counsel. It is well settled that in case a plaintiff challenges an order of a revenue authority on the ground that the order is void, it is for him to establish all the facts showing that the order is such. In the plaint, as already stated above, the ground for challenging the impugned order was that the date of institution of the application under section 18 could not be found out and therefore, 6 years'' cultivation was not proved and that the land remained with the Forest Department till 1965. Therefore, the appellant could not remain in possession for a period of 6 years before the filing of the application. The plaintiff cannot now be allowed to challenge the order on any other ground except the aforesaid ones. Regarding the first ground, both the Courts found as a matter of fact that the appellant was in possession prior to the year 1961. Consequently it can be assumed that at last he came in possession in the year 1961. The date of application for purchase of land is available on the impugned order, Exhibit D. 2 which is 3rd september, 1969. Consequently the finding of the appellant Court that the date of purchase was not available on the record is erroneous. Thus it is evident that on the date when the application for purchase was filed, the appellant had remained in possession of the land as a tenant for a period of more than 6 years. In this situation he had a right to purchase the land.

Now it is to be seen whether the land came in possession of the Forest Department and it remained in its possession till 1965. The notification issued by the State Government is dated 17th January, 1960. It relates to field No. 239 min. measuring 213 acres. Parma Nand (DW1) Patwari appeared in the witnessbox and deposed that field No. 239 measured 358 acres. The consolidation has taken place in the village. The numbers which are now in dispute are postconsolidation numbers and it has not been proved by the plaintiff that the aforesaid field numbers were given in lieu of field No. 239 min. which was taken by the Government under the said notification. It is possible that the land in dispute had been allotted during the consolidation proceedings in lieu of part of field No. 239 min. which was not taken by the Government under the said notification. Therefore, the notification does not help the plaintiff in any way.

The next objection of Mr. Nehra, as already mentioned above, is that it has not been shown by the appellant that the land did not constitute a part of the reserved area. However, the order of the Assistant Collector has not been challenged on that ground and as discussed above, he cannot be allowed to raise this point. Consequently I upset the finding of the appellate court on issue No. 1 and hold that the impugned order is not void.

Mr. Jain, learned counsel for the appellant, has next argued that the plaintiff was estopped from filing the suit as he had withdrawn the first instalment of compensation. I do not find any substance in the submission of the learned counsel. In case the order was void, the plaintiff was not estopped from challenging the same and in case it was not void, he could not challenge the same. In the circumstances, in my view, this question does not arise. Anyhow the appellant did not suffer any injury on that account and, therefore, the principle does not apply.

For the aforesaid reasons, I accept the appeal set aside the judgment and decree of the Appellate Court and dismiss the suit of the plaintiff with no order as to costs.