Hawa Singh vs Haryana State

Paramjeet Singh, J.—This regular second appeal by plaintiff is directed against the judgment and decree dated 27.08.2009 passed by learned Additional District Judge, Panipat whereby appeal preferred by the respondents-defendants has been accepted, judgment and decree dated 03.11.2008 passed by learned Additional Civil Judge (Sr. Divn.), Panipat has been set aside and suit of plaintiff has been dismissed.

For convenience sake, hereinafter, reference to parties is being made as per their status in the suit.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for mandatory injunction with the averments that he had earlier filed a suit before the Assistant Collector Ist Grade, Panipat to the effect that he is owner in possession of the land mentioned in para 1 of the plaint. The said suit of the plaintiff was contested by the defendants and ultimately, vide judgment and decree dated 22.01.1996, it was decreed holding that property in dispute does not vest in Gram Panchayat, Nara. The said judgment and decree had become final. Thereafter, the plaintiff approached the Halqa Patwari and Kanungo for entering the mutation on the basis of decree dated 22.01.1996. Naib Tehsildar-cum-Assistant Collector IInd Grade was also approached to get the mutation entered and sanctioned on the basis of above said judgment and decree, but the authorities failed to do so. Thereafter, legal notice dated 03.09.2007 u/s 80 CPC was also served upon the defendants for getting the mutation sanctioned, but in spite of the same, no action was taken. Even application was also moved before the Sub Divisional Officer (Civil)-cum-Collector, Panipat, but he also did not take any action. After the expiry of period of notice dated 03.09.2007, suit was filed.

Upon notice, defendant No. 1 resisted the suit and filed written statement taking preliminary objections that suit is not maintainable; that suit has been filed against Haryana State through Naib Tehsildar-cum-Assistant Collector-IInd Grade, Madlauda, District Panipat which is against the law and provisions of CPC; that suit has been decreed merely to the extent that the suit land does not vest in Gram Panchayat, whereas, it has not been recorded that plaintiff is the owner in possession of the suit land. On merits, it was denied that the plaintiff is owner in possession of the suit land. It was pleaded that Assistant Collector-Ist Grade merely observed that suit land does not vest in Gram Panchayat, therefore, in view of abovesaid observation, mutation cannot be sanctioned in favour of the plaintiff as owner. Other averments in plaint were denied and dismissal of suit was prayed for.

Defendant No. 2 also filed its separate written statement taking preliminary objections of maintainability, estoppel and cause of action. On merits, it was pleaded that possession of the plaintiff over the suit property since 1943-44 has been admitted. The suit property has wrongly been shown in the name of the answering defendant. The factum of filing of ejectment petition and passing of order dated 22.01.1996 by Assistant Collector Ist Grade, Panipat has been admitted. Other averments in plaint were denied and dismissal of suit was prayed for.

On the basis of pleadings of the parties, the Court of first instance framed following issues:

Whether the plaintiff is owner in possession of the suit property as alleged in the plaint, if so to what effect? OPP

Whether the suit is not maintainable? OPD

Relief.

After appreciating the evidence, the Court of first instance decreed the suit directing the defendants to sanction the mutation of the suit property in favour of the plaintiff with regard to judgment and decree dated 22.01.1996 in case No. 54/7. Feeling aggrieved, the defendants preferred an appeal which has been accepted holding that Assistant Collector-Ist Grade had only held in that order that the disputed property did not vest in the Gram Panchayat and it is nowhere held that the plaintiff has become owner of the suit property nor any analogy can be drawn to that effect from the findings returned by the Assistant Collector-Ist Grade in that order. Hence, this second appeal.

I have heard learned counsel for the parties and perused the record.

Learned senior counsel for the appellant submitted that following substantial questions of law, formulated in the grounds of appeal, arise for consideration by this Court:

(i) Whether in the facts and circumstances of the instant case, the approach of the learned first Appellate Court in accepting the appeal by reversing the well considered and well reasoned judgment and decree of the learned Trial Court, by misreading and misinterpreting the order dated 22.01.1996 passed by the Assistant Collector Ist Grade in a title suit filed by the appellant, is not illegal and unsustainable in law?

(ii) Whether in the facts and circumstances of the instant case, once the land in question has been proved to be neither owned nor possessed by the Gram Panchayat, the suit filed by the appellant could be dismissed?

Learned senior counsel for the appellant submitted that decree dated 22.01.1996 had been passed by the competent authority u/s 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (in short, ''the 1961 Act'') and the said decree had become final. Learned senior counsel further contended that correction of revenue record is relevant only for fiscal purpose and mutation is required to be sanctioned on the basis of decree which has become final and the revenue authorities were bound to follow the decree. There is an observation by the Assistant Collector Ist Grade that order of the Civil Court can be ignored u/s 13 of ''the 1961 Act''.

Per contra, learned State counsel and learned counsel for respondent No. 3 vehemently opposed the contentions of learned senior counsel for the appellant and advanced the arguments separately but their common case is that vide decree dated 22.01.1996, there is no declaration that the plaintiff is owner in possession of the property and only suit was decreed to the extent that suit land is not proved to be vested in the Gram Panchayat.

I have considered the rival contentions of learned counsel for the parties.

On perusal of record and arguments advanced by learned counsel for the parties, this Court finds that following substantial question of law arises for consideration in this appeal:

Whether in view of judgment and decree dated 22.01.1996, direction can be issued to the revenue authorities to effect changes in the revenue records in accordance with law and as such the impugned judgment and decree passed by the lower Appellate Court is perverse and against law?

Before answering the substantial question of law involved in this appeal, it would be appropriate to reproduce Sections 13 and 13-A of ''the 1961 Act'' as below:

Bar of Jurisdiction - No civil courts shall have jurisdiction-

(a) to entertain or adjudicate upon any question whether-

(i) any land or other immovable property is or is not shamlat deh;

(ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act;

(b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Court to determine; or

(c) to question the legality of any action taken or matter decided by any revenue Court, officer or authority empowered to do so under this Act.

13-A. Adjudication-Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorized by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immovable property is shamlat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the Court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated.

Provided that no suit shall lie under this section in respect of the land or other immovable property, which is or has been the subject matter of the proceedings u/s 7 of this Act under which the question of title has been raised and decided or under adjudication.

(2) The procedure for deciding the suits under subsection (1) shall be the same as laid down in the Code of Civil Procedure, 1908 (5 of 1908).

Perusal of Section 13 of ''the 1961 Act'' reveals that it bars the jurisdiction of the civil court to entertain any dispute. Section 13 of ''the 1961 Act'' leaves no manner of doubt that a person asserting, that land is or is not shamlat deh or that any right, title or interest therein vests or does not vest in the Gram Panchayat, is required to file a petition/suit u/s 13-A of ''the 1961 Act''. A conjoint reading of Section 13 and 13-A of ''the 1961 Act'' leads to a singular conclusion when a party raises an objection and pleads lack of jurisdiction to entertain a suit in pursuance to the statutory bar contained u/s 13 of ''the 1961 Act'', it cannot raise objection that matter has been wrongly decided by the revenue authorities under ''the 1961 Act''. In the decree dated 22.01.1996 passed by the Assistant Collector Ist Grade, it has been specifically held that civil court decree already existing can be ignored meaning thereby that jurisdiction of the Revenue Court u/s 13-A of ''the 1961 Act'' is a valid jurisdiction and it cannot be argued by the Gram Panchayat and State that decree dated 22.01.1996 is illegal, null and void, rather it is valid one and it has become final. Once the decree has become final, there is no provision in ''the 1961 Act'' for execution of such decree, then the question arises whether suit for mandatory injunction can be filed u/s 39 of the Specific Relief Act, 1963 (in short, ''the 1963 Act'') which reads as under:

Mandatory injunctions.--When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

It is the case of the appellant that the defendants may be directed to implement the decree by attesting the mutation in his favour and to incorporate his ownership in the revenue record. Admittedly, suit for mandatory injunction to compel performance of a requisite act can be filed u/s 39 of ''the 1963, Act''. Since there is no specific provision in ''the 1961 Act'' to execute the decree (Ex. P-1) dated 22.01.1996, therefore, suit for mandatory injunction can be filed for its compliance. A decree of Civil Court can be executed in accordance with its terms and conditions without modification under the provisions of CPC. Section 51 of CPC enumerates the general modes to be adopted by a Court executing a decree. Modes of execution are mentioned therein which empowers the Court to order execution of the decree in such a manner as the nature of relief may require and there is a residuary clause also which covers the decree which cannot be executed by any means provided by clauses (a) to (d). Clause (e) does not authorize granting supplementary or alternative relief or a relief not allowed by the decree.

The instant suit from which this second appeal arises, is for mandatory injunction and earlier decree was passed by the revenue court. No provision has been shown by the parties that same can be executed like a decree passed by the Civil Court under Order XXI Rule 10 CPC. Only option available to the plaintiff was to file a suit for mandatory injunction for implementing the decree dated 22.01.1996 passed by the Assistant Collector Ist Grade which has become final. In the peculiar circumstances of the case, it would be appropriate to direct the revenue authorities to implement the decree dated 22.01.1996 in letter and spirit. Besides this, it needs to be emphasized that identical decrees were passed by the civil court in the year 1965 and relief was granted in those cases. Feeling aggrieved, regular second appeal was preferred by the Gram Panchayat, Nara which was dismissed vide judgment dated 04.11.2011 passed by a Coordinate Bench of this Court in RSA No. 1610 of 2010. Therefore, the case is also squarely covered with the judgment dated 04.11.2011. The aforesaid substantial question of law is answered accordingly.

In view of above, appeal is allowed, impugned judgment and decree dated 27.08.2009 passed by the lower Appellate Court is set aside, judgment and decree dated 03.11.2008 passed by the Court of first instance is restored, suit of the plaintiff is decreed and defendants are directed to implement the judgment and decree dated 22.01.1996 passed by the Assistant Collector-Ist Grade in revenue proceedings. Decree-sheet be prepared accordingly.