Mahant Ram Kishan Chela Thakar Dass vs Shiromani Gurdwara Parbandhak Committee, Amritsar

G. C. Garg, J.

This Regular First Appeal is directed against the order of the Sikh Gurdwaras Tribunal, Punjab at Chandigarh (for short "the Tribunal") in suit No. 12 of 1966 decided on 13.9.1973.

Shiromani Gurdwara Parbandhak Committee, Amritsar (for short "SGPC") as a Committee of Management of Gurdwara situated in the revenue estate of Kaleke, District Sangrur filed a suit under Section 25A of the Sikh Gurdwara Act, 1925 (for short "the Act"), for possession of the land measuring 251 Bighas 6 Biswas situated in village Kaleke along with the Gurdwara building and the Smadh, as fully detailed in the suit. According to the plaintiff, Gurdwara Sahib Nanakwara was notified as Sikh Gurdwara vide notification dated 10.7.1959. Objections against the notification were disposed of by the Tribunal by order dated 23.2.1965 and it was declared further that the notified Sikh Gurdwara Sahib Nanakwara is the owner of the property comprised of land, Gurdwara building and the Smadh. According to the plaintiff, a committee of management was constituted for this Gurdwara in July 1965 and, therefore, the suit filed on 14.1.1966 was within limitation.

Mahant Ram Kishan, defendant in the suit filed written statement and took a preliminary objection that neither the area nor the Khasra Nos. of the land have been correctly described. On the pleadings of the parties two issues were struck. However, on an application under Order 14 Rule 5 of the Code of Civil Procedure moved by the defendant, additional issues were struck. Issues 2 to 6 were decided against the defendant whereas Issue 1 was decided in favour of the plaintiff. Suit was consequently decreed by judgment and decree dated 13.9.1973.

In order to appreciate the contention of learned counsel for the appellant, it is necessary to notice Issue No. 3 as framed by the learned Tribunal and the said issue reads thus :

"Whether the suit is not maintainable in present form ? OPD"

The conceded position in this case is that Gurdwara Sahib Nanakwara was notified as Sikh Gurdwara vide notification dated 10.7.1959 and the consolidation in the village took place during the year 196061. The Khasra Nos. of the land existing prior to the consolidation and notified in the notification of the year 1959 were allotted different numbers during consolidation and Khasra Nos. notified during the year 1959 did not exist at the site either in the year 1966 or in the year 1973.

Learned counsel for the appellant in the above background submitted that the SGPC filed the instant suit in the year 1966 seeking possession of 251 Bighas and 6 Biswas of land by giving details thereof by way of Khasra numbers. The Khasra Nos. the details of which were given in the suit did not exist during the year 1966, the consolidation proceedings having intervened during the year 196061. According to the learned counsel, a specific objection was taken before the learned Tribunal that the suit as framed was not maintainable inasmuch as the plaintiff filed the suit seeking possession of the nonexistent Khasra Nos. and did not seek possession of the Khasra Nos. which were carved out as a result of consolidation during consolidation proceedings. Despite the objection, the plaint was not amended. Not only this, this Court also gave opportunity to the plaintiff to seek amendment of the plaint but no steps were taken to amend the plaint during the last 5 to 6 years. Learned counsel further submitted that the view of the learned Tribunal that the executing court will be well within its bounds to verify the latest Nos. of the land while delivering possession to the decree holder in execution proceedings, is not correct. Learned counsel during the course of his submission also referred to the provisions of Order 7 Rule 3 of the Code which provides that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. It is in this background learned counsel submitted that the suit as framed was not maintainable and the learned Tribunal erred in overruling the objection and decreeing the suit.

Learned counsel for the plaintiffrespondent, on the other hand, submitted that it is correct that new numbers that were carved out during consolidation in lieu of old Nos. have not been detailed in the suit; yet it is open to the executing court during execution proceedings to order delivery of new Nos. in place of old Nos. and no exception can be taken to the view taken by learned Tribunal in that behalf.

On a consideration of the matter, we are of the opinion that the court should not reject the plaint on technicalities especially relating to description or insufficient description of the property. It should give the plaintiff a chance to furnish necessary particulars of the immovable property in such a manner that it may be identified, either by way of amendment of the plaint or otherwise. In the present case, a specific objection was taken by the defendant regarding description of the property yet the plaintiff did not take any step to incorporate the Khasra Nos. that had been carved out in lieu of old Khasra Nos. during consolidation. This court again granted time to the plaintiffrespondent to take steps in that behalf but it did not seek amendment of the plaint by substituting the old Khasra Nos. with new Khasra Nos. The Court thus cannot be blamed in that behalf. The position might have been entirely different if the plaint containing old Khasra Nos. had been filed and thereafter new Khasra Nos. had been allotted during consolidation or otherwise and in that situation the executing court would have been well within its rights to identify the Nos. contained in the plaint with the new Khasra Nos. allotted during the pendency of the suit and deliver possession of the property to the plaintiff accordingly. The question, however, in the present case is slightly different. The consolidation in the present case took place about five years prior to the filing of the suit. Consequently, new Khasra Nos. were assigned in lieu of the old Nos. about five years prior to the date of filing of the suit. In this situation, the plaintiff was obliged to seek relief in respect of new Khasra Nos. that were assigned as a result of consolidation. In our opinion and especially keeping in view the provisions of Order 7 Rule 3 of the Code, it was enjoined upon the plaintiff to disclose the particulars of the land by giving details of the property as it existed on the date of the suit. This the plaintiff has precisely failed to do. As already noticed in the beginning of this order, concededly the property of the Sikh Gurdwara was notified by describing the old Nos. as these were then existing. Consolidation took place thereafter. The suit was filed in the year 1966 after the consolidation proceedings had been concluded. It was in this situation necessary for the plaintiff to give details of the Khasra Nos. that were assigned to the land in lieu of old Khasra Nos. In the situation like this, the executing court cannot go behind the decree as no event subsequent to the filing of the suit has taken place so as to clothe the executing court with jurisdiction to deliver possession of the new Nos. after holding an inquiry in that behalf. As already observed that the position would have been entirely different, if the consolidation proceedings had taken place after the filing of the suit. In view of the above, we are of the opinion that the learned Tribunal was not right in coming to the conclusion that the executing court will be entitled to verify the latest Khasra Nos. of the land while delivering possession of the property to the decree holder in execution proceedings. Findings on Issue No. 3 are thus reversed.

The findings of the learned Tribunal on other issues were either not challenged or were challenged halfheartedly. It is thus not necessary to consider the findings of the learned Tribunal under other issues. We are thus clearly of the opinion that the suit as filed is not maintainable, the description of the property having not been correctly given. The appeal is thus allowed and the judgment and decree of the learned Tribunal is set aside.

During the course of hearing, learned counsel for the plaintiff respondent submitted that the plaintiff may be permitted to file a fresh suit seeking possession of the land by describing the Khasra Nos. that were carved out in lieu of old Khasra Nos. Learned counsel for the defendantappellant however, submitted that it is always open to the plaintiff to file a suit claiming possession and the defendant will not raise the question of limitation, if any in that behalf. For the stand taken by learned counsel for the defendantappellant, it is not necessary for us to go into this question and we leave it open to the plaintiff to file a suit seeking possession of the property in question in accordance with law. However, if such a suit is filed, the defendantsappellant shall not raise the question of limitation in that behalf. No costs.