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Judgment
R.L. Anand, J.—Sarvshri Ram Lal, Madan Lal and Rajinder Kumar sons of Pt. Salig Ram have filed the present civil writ petition under Articles 226/227 of the Constitution of India against the respondents, i.e, the Financial Commissioner, Chief Settlement Commissioner, Settlement Commissioner and Assistant Settlement Officer (Sales) cum-Managing Officer, Jalandhar, praying that a writ of certiorari be issued and the orders dated 30.8.1979, 16.6.1977, 29.4.1976 and 15.10.1975 passed by respondent, Nos. 1 to 4, respectively, holding that Pt. Salig Ram, father of the petitioners, was not the owner in possession of property No. 472/5, Tarn Taran, and further declaring that the property is still available for disposal, be quashed being illegal, arbitrary, capricious and inoperative.
The case set up by the petitioners is that the property bearing No. 472/5 was an evacuee property and it belonged to Wazira Mashki, as detailed in the writ petition. This property has now been denoted by Municipal No. 342/13. Wazira Mashki mortgaged property No. 472/5, Tarn Taran, in favour of one Pohu Mal mortgagee. The property was declared a composite property and was made over for disposal to the Competent Officer, Amritsar, who issued a notice for public auction. This property was described as a Khola. It was put to auction on 14.6.1955 and it was purchased by Pandit Salig Ram, father of the petitioners for a sum of Rs. 510/-. On 19.8.1955 the Competent Officer issued a certificate of sale in favour of Pt. Salig Ram. After purchasing the Khola, Pt. Salig Ram raised construction over it by spending huge sum of money. Thereafter, Pt. Salig Ram gave the property on rent to one Sohan Singh in the year 1963. After the death of Sohan Singh the house remained in occupation of his widow Smt. Gurnam Kaur and her sons, Baldev Singh, Santokh Singh and Hardev Singh.
Property No. 471/5, which is situated on the South of the property No. 472/5, belonged to Jiwani Ghumiar before the partition of the Country and was declared as an evacuee property. It was also purchased by Pt. Salig Ram from the Rehabilitation Department in a public auction on 19.6.1958 and a sale certificate was issued on 14.8.1958. In this sale certificate, the address of the petitioners'' father Pt. Salig Ram is mentioned, being resident of House No. 472/5, Tarn Taran, which clearly indicates that by the year 1958 Pt. Salig Ram had already raised construction on the property in dispute, i.e., property No. 472/5. After the death of Sohan Singh, his widow Smt. Gurnam Kaur and her sons Baldev Singh, Santokh Singh and Hardev Singh refused to make payment of the rent, as a result of that Pt. Salig Ram filed Civil Suit No. 219 of 1971 in the Court of Sub Judge, Tarn Taran, for the possession of the property. During the pendency of the suit, Smt. Gurnam Kaur and her sons disputed the title of Pt. Salig Ram to the property in dispute. The suit of Pt. Salig Ram was decreed vide judgment dated 28.2.1974 and a decree for possession was passed against Smt. Gurnam Kaur and her sons. During the course of proceedings in the Court of Shri S.S. Kamal, Sub Judge 2nd Class, Tarn Taran, the Record Keeper of the office of Deputy Commissioner, Amritsar, appeared as a witness and he brought a file containing the orders dated 15.7.1955. In the said file the number of the property in dispute was mentioned as 472/5. It is alleged that after the passing of the decree by the Court of Sub Judge, Tarn Taran, Smt. Gurnam Kaur and her sons approached the Assistant Settlement Officer, Rehabilitation Department, Jalandhar, to conduct a parallel enquiry in order to secure a finding contrary to the Judgment of the Civil Court, and Shri Harchand Singh, Assistant Settlement Officer, Jalandhar, inspected the spot and he came to certain conclusions, which were apparently wrong and against the circumstances existing at the spot. He held property No. 472/5 as an evacuee property and not a composite property. He further held that the property belonged to Gulu and not to Wazira and was still available for disposal. The appeal filed by Smt. Gurnam Kaur and her sons was also dismissed by the Court of Shri Tara Singh Cheema, Additional District Judge, Amritsar, vide judgment dated 24.3.1976. However, the Additional District Judge made certain observations to the effect that the judgment pronounced by him was inter se parties and it would remain the judgment in personam and the rights of the Central Government or for that matter anybody else in deriving the title from the parties to this litigation shall not be affected.
It is also averred that on the departmental side the petitioners'' father Pt. Salig Ram filed an appeal against the order dated 17.10.1975 before respondent No. 3 and this appeal was dismissed on 29.4.1976 vide Annexure P7. Thereafter Pt. Salig Ram filed revision u/s 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short ''the Act'') and it was also dismissed on 16.6.1977 (Annexure P8) by the Chief Settlement Commissioner (respondent No.2). Yet another petition u/s 33 of the Act was filed by Pt. Salig Ram and the same was also dismissed on 30.8.1979 vide Annexure P9 by the Financial Commissioner, Revenue (respondent No. 1).
In the present writ petition the petitioners have alleged that the orders Annexures P5, P7, P8 and P9, passed by respondents Nos. 1 to 4, respectively are illegal, arbitrary, ultra vires the rules of natural, justice, void and inoperative because the findings of the Assistant Settlement Officer (Sales) to the effect that property No. 472/5, in fact, belonged to Gulu, were wrong. In fact property No. 473/5 and not property No.; 472/5 belonged to Gulu. The spot was inspected by the Assistant Settlement Officer in the presence of Pt. Salig Ram and he was misled in making the wrong observations. The property in dispute was a Khola belonging to Wazira. It was burnt during partition and become a Khola and it was auctioned and purchased by Pt. Salig Ram. Over this Khola Pt. Salig Ram, father of the petitioners, constructed the house by making huge investments, Later on property No. 471/5 was also purchased by Pt. Salig Ram and while describing the boundaries it has been mentioned in the sale certificate that Pt. Salig Ram was residing in House No. 472/5, i.e., the property in dispute. It was also averred in the grounds of petition that the judgment and decree of the Civil Court (Annexure P4); as affirmed by the appellate Court vide Annexure P6, is binding upon Smt. Gurnam Kaur and her sons and they could not raise a dispute over it again before the departmental authorities to the effect that Pt. Salig Ram was not the owner of the property in dispute. The question of title was always to be decided by the Civil Court and the Civil Court has given the findings that the property in dispute belonged to Pt. Salig Ram and in these circumstances the orders Annexures P5, P7 and P8 run contrary to the decree of the Civil Court. Respondents No. 2 and 3 have merely placed reliance on certain observations earlier made by respondent No. 4. Moreover, Smt. Gurnam Kaur and her sons have already been evicted from the property in dispute as a result of warrants of possession and that the property in dispute is in the possession of the petitioners. The property earlier belonging to Gulu, i.e., property No. 473/5, is still in possession of Bhan Singh. Respondent No. 1 has tried to make out a new case for the Rehabilitation Department. There was no justification on the part of respondent No. 1 in making the observations that in the proclamation of sale issued by the Central Auctioneers the number of property has been interpolated as 472/5. The file remained in the possession of the Rehabilitation Department and if any interpolation had been made it must have been done by the Department and not by the predecessors-in-interest of the petitioners. With the above main averments the petitioners have filed the present writ petition.
It may be mentioned here that notice of the writ petition was given to the respondents and at one point of time the Assistant Advocate General, Punjab, accepted the notice on behalf of the respondents, but the respondents did not think it proper to file any reply to the writ petition. The record of this case also shows that at one point of time, i.e., 15.9.1992, the writ petition was dismissed for want of prosecution, but on 13.11.1992 in the presence of the Assistant Advocate General, Punjab, the said order dated 15.9.1992 ws recalled and the writ petition was restored to its original number. In spite of the fact that the writ petition was admitted for hearing as back as in the year 1980, nobody has cared to file the return. The present writ petition, however, is beig disposed of with the assistance of Shri P.S. Rana, Advocate, appearing on behalf of the petitioners, and Shri P.S. Chhinna, Senior Deputy Advocate General, Punjab, appearing on behalf of the respondents.
Learned counsel for the petitioners has relied upon Annexure P4, i.e., the judgment dated 28.2.1974 passed by the Court of Shri S.S. Kamal, Sub Judge IInd Class, Tarn Taran, and submitted that it has already been held that property No. 472/5 belonged to Pt. Salig Ram and in these circumstances it was not justified on the part of respondents Nos. 1 to 4 to give a finding contrary to the findigns of the Civil Court. In support of his argument, learned counsel for the petitioners has drawn my attention to para No. 8 of the judgment, which runs as follows:-
"Kartar Singh (PW1), who is a House Tax Clerk in the Municipal Committee, Tarn Taran, stated that he has brought the House Tax Register for the year 1947-48; that according to the entries in this register, the owner of house No. 4/472 was Wazira Mashki resident of village Kot Dharam Chand; that the owner of the house No. 5/471, was Jiwni widow of Karan Din Ghuman and that Sheikh Gulam Mohammad alias Gulu was owner of house No. 5/473; that according to the assessment year 1970-71, the new number of house No. 5/472 is 13/342 and that Ex.P1 was a copy of an entry from the register of house tax. Anand Ram (PW2), Clerk of the office of the Official Receiver, Amritsar, depsoed that he knew Salig Ram plaintiff; that he used to conduct auctions relating to the property owned by Competent Officer and the Custodian that he had auctioned the house in dispute infavour of Salig Ram son of Nanak Chand plaintiff and that the auction was held in the presence of Shri Harbans Singh, Competent Officer, Balbir Singh (PW) Record Keeper, office of the Deputy Commissioner, Amritsar, stated that he had brought the file entitled Pohlu Mal versus Wazira of the office of the Competent Officer, containing the order dated 15.7.1955; that his goshwara number was 833/71; that in the said file, at page 25, a notice of auction is placed; that on this notice, that No. of the property noted is 472/5, situated in Tarn Taran and it is also stated therein that on the nortern side of this house is the house of Gulu, on its eastern side is the house of Ibrahim; on the southern side is the house of Jiwani Ghumar and on the western side is the street and that a certificate of sale in respect of his property was issued on 14.8.1955. Salig Ram as PW 4 stated that the previous number of the house in dispute was 5/472; that Wazira Mohammdan was the onwer of this house; that the said house was auctioned by the order of the Competent Officer; that he had purchased the said house for a sum of Rs. 510/- in that auction; that the sale certificate issued to him as a result of that auction is Ex.P2; that on the eastern side of his house was the house of Ibrahim, where now-a-days is the house of Iqbal Singh; that on the western side is the street; that on the northern side is the house of Gulam Mohammad alias Gulu where now-a-days Bhan Singh is living; that on the southern side is the house of Jiwani where now-a-days he was residing; that the number of the house is 13/342; that the house belongs to him; that he had given it to Sohan Singh husabnd of Gurnam Kaur; that Sohan Singh has died; that Gurnam Kaur is not paying the rent; that he had filed a suit for ejectment against Gurnam Kaur; that the said application has been rejected as relationship of landlord and tenant was not proved; that the defendants are occupying the property in suit forcibly.
A perusal of the order dated 15.7.1955 Ex.P4, passed by Shri Harbans Singh, Competent Officer, Amritsar, shows that the property was sold in public auction for Rs. 510/- in favour of the plaintiff and that he being the highest bidder, the sale was confirmed in his favour on 15.7.1955. However, the detail of the property was not given in this order. A perusal of the sale certificate Ex.P2 shows that the property of the following description was sold by public auction on 21.9.1955 in favour of the plaintiff for a sum of Rs. 510/- originally a house, but now only Khola situated in Tarn Taran bounded as under:-
North : House of Gulu South : Site of Jiwan Ghumar East : House of Ibrahim West : Street Further a copy of the written statement, Ex.P3, shows that the defendant (respondent in that case) had admitted that the number of the property in dispute was 472/5 and it was evacuee property. A perusal of the sale certificate Ex.P5 dated 14.7.1958 indicates that it was issued to Salig Ram plaintiff declaring him to be owner of property No. 472/5 having given the highest bid of Rs. 250/- at a sale by public auction held on 19.6.1958."
My attention has also been invited to para No. 14 of the said judgment and it was submitted by the learned counsel for the petitioners that it has been categorically held by the Civil Court on the basis of the evidence that Pt. Salig Ram was the owner of properties Nos. 471/5 and 472/5 on the basis of the sale certificates Exhibits P1 and P5. Further a finding has been given that Shri Salig Ram has become the owner of the property, i.e., H.No. 342/13 equivalent to 472/5. This finding though was given against Smt. Gurnam Kaur, Baldev Singh, Santokh Singh and Hardev Singh, yet these findings cannot be ignored lightly by respondents Nos. 1 to 4, as the finding of the Civil Court are based on the statements of the official witnesses. It was also pointed out by Shri Rana that the judgment of the trial Court was affirmed by the Court of Additional District Judge, Amritsar, and the observations given by the Court of Additional District Judge that his judgment will be considered as judgment in personam, have no relevancy so far as the title of the disputed property is concerned. It was further argued that since there is no challenge to the writ petition from the side of the respondents, therefore, it should be presumed that the respondents have nothing to say in the matter.
On the contrary it was submitted by Shri Chhinna, Sr. Deputy Advocate General, that though written statement had not been filed by the respondents, yet they could show that Shri Salig Ram never purchased the property No. 472/5. It remained an evacuee property and never became a composite property. The findings given by the respondent-authorities cannot be challenged by the petitioners. The respondent-authorities are not bound by the judgments rendered by the Civil Court as well as by the first appellate Court as the Union of India or the State Government were not parties to the suit and they can independently establish that property No. 472/5 was never sold to Pt. Salig Ram.
After considering the rival contentions of the parties, I am of the considered opinion that the submissions made by the learned counsel for the respondents are devoid of any merit. So far as the position of law is concerned it is well settled that if the averments made in the writ petition/plaint are not denied either specifically or by implication, those are supposed to be admitted. Vide Annexure P1 it is proved on the record that the property which was put to auction as per this proclamation was Khola, bearing No. 472/5. Annexure P2 - the sale certificate - further shows that Shri Salig Ram purchased property in Unit No. 472/5, being this highest bidder and the sale certificate to that effect was issued. Kartar Singh, House Tax Clerk, gave a statement in the Court of Sub-Judge on 23.12.1969 to the effect that Wazira Mashki was the owner in possession of House No. 472 and the numbers of H.No. 472 is 13/342 and H.No, 473 is 13/343. A perusal of the judgment delivered by Shri S.S. Kamal clearly establishes that the dispute was with regard to the property in dispute. Shri Salig Ram filed a suit for possession of property No. 342/13 equivalent to 472/5. The suit was hotly contested by Smt. Gurnam Kaur and her sons and from the record of the Department it was established that this property was sold in favour of Pt. Salig Ram and he was the highest bidder. The judgment of Sh. S.S. Kamal was affirmed by the Court of Shri T.S. Cheema, Additional District Judge and it was not open for Pt. Salig Ram to challenge this judgment in the R.S.A. Rather this judgment was not attacked by Smt. Gurnam Kaur and others. Her defence was totally rejected. In view of the specific finding given by the Civil Court it was not open for the authorities to give a finding contrary to the findings of the Civil Court. No doubt the Union of India or the State Government are not parties to the suit, but it cannot be lost sight of the fact that the suit of the plaintiff was decreed on the basis of the official record produced by the Rehabilitation Department and now it is not open to the Department to allege that the property remained as an evacuee one or that it could be put to auction. The impugned orders in these circumstances cannot be sustained in the eyes of law with the passing of the title in favour of the auction purchaser. Since the property was not evacuee, the authorities-respondents Nos. 1 to 4 could not pass any order in relation to that property.
Resultantly, the present writ petition is allowed. The impugned orders dated 30.8.1979, 16.6.1977, 29.4.1976 and 15.10.1975 passed by respondent Nos. 1 to 4, respectively, are hereby quashed. It is further declared that Shri Salig Ram, father of the petitioners was the owner and in possession of property No. 472/5, Tarn Taran, on the bass of the sale certificate issued to him. There shall, however, be no order as to costs.