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2011 (3) PLR 333
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
JITENDRA CHAUHAN, J.
STATE OF HARYANA - Appellant
Versus
HARI OM AND OTHERS - Respondents
RSA NO.2074 OF 1985
Decided on: 31.3.2011
Punjab Tenancy Act - Ownership of Land - Section 5(2), Section 77(3)(d) - The court discussed the provisions of Section 5(2) of the Punjab Tenancy Act, 1887, which pertains to the entitlement of occupancy tenants, and Section 77(3)(d) which bars the jurisdiction of civil courts in cases related to the claim of right of occupancy. The court found that the plaintiff's suit was premature and should have exhausted statutory remedies under the Haryana Ceiling on Land Holdings Act, 1972. The court also noted that the order declaring the suit land as surplus was set aside, rendering the suit infructuous. As a result, the appeal was allowed and the judgments of the lower courts were set aside.
Fact of the Case:
The plaintiff filed a suit seeking declaration as the owner of the land under the Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1952. The State of Haryana contested the suit, denying the plaintiff's allegations and asserting that the suit land was surplus. Various preliminary objections were raised, and the court framed several issues based on the pleadings of the parties.
Finding of the Court:
The court found that the plaintiff's suit was premature and should have exhausted statutory remedies under the Haryana Ceiling on Land Holdings Act, 1972. It also noted that the order declaring the suit land as surplus was set aside, rendering the suit infructuous. As a result, the appeal was allowed and the judgments of the lower courts were set aside.
Issues: The issues included the plaintiff's entitlement to ownership under the Punjab Occupancy Tenant Act, correction of entries in revenue records, and the validity of the order allotting the suit land to the defendants. Preliminary objections were also raised, including lack of jurisdiction of the civil court and the plaintiff's locus standi.
Ratio Decidendi: The court held that the plaintiff's suit was premature and should have exhausted statutory remedies under the Haryana Ceiling on Land Holdings Act, 1972. It also noted that the order declaring the suit land as surplus was set aside, rendering the suit infructuous.
Final Decision: The appeal was allowed, and the judgments of the lower courts were set aside.
JITENDRA CHAUHAN, J. - The present regular second appeal has been preferred by the State of Haryana against the judgment and decree dated 21.2.1985 delivered by the Court of Addl. District Judge, Sirsa, whereby the judgment dated 20.1.1983 passed by the Sub Judge, IInd Class, Sirsa, was affirmed.
2. The present case was admitted for regular hearing on 20.8.1985.
3. The facts giving rise to the present case are that the plaintiff filed a suit for declaration to the effect that in view of Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1952, he became owner of the suit land and the entries in the revenue record showing the plaintiff to be Tenant are liable to be corrected. The plaintiff also sought declaration to the effect that the order dated 28.12.76 passed by the Prescribed Authority, Sirsa is wrong, against law and facts and is liable to be set-aside on the ground that he and his predecessors had been cultivating the suit land since time immemorial on payment of fixed cash rent, as there was paucity of cultivators in the village and thus, the predecessors of the defendant No.2 gave the suit land for cultivation to the predecessors of the plaintiff. At that time it was agreed by the predecessors of the defendant No.2 that they may continue paying cash rent and make the land cultivable and in case they do not commit fault, they would not be dispossessed. That as per custom the plaintiff has acquired the right of occupancy Tenant. However, the Prescribed Authority, Sirsa vide order dated 28.12.76, allotted the suit land in favour of defendant no. 3 to 9 when in fact the suit land was not surplus. An application under Section 80 (2) C.P.C. was also filed with the suit, the suit was registered and notice of the same was given to the defendants.
4. None of the defendants appeared in the court despite service through Munadi/Publication and, therefore, all the defendants were ordered to be proceeded against ex-parte. But subsequently, on the application of the State, the defendant No.1, the ex-parte order was set-aside. The contesting defendant (present Appellant i.e. State of Haryana) filed its written statement denying the allegations of the plaintiff and asserted that the suit land was surplus. The other allegations of the plaintiff were also denied by the contesting defendant. Various preliminary objections were also raised. Replication was filed and on the pleadings of the parties, the following issues were framed vide order dated 12.5.82.
1. Whether the plaintiff has become owner of the suit land because of proprietary Rights as alleged ? OPP
2. Whether the plaintiff in entitled to be entered as owner in the revenue record? OPP
3. Whether the order dated 28.12.76, of the allotment Authority is liable to be set-aside as alleged? OPP.
4. Whether the suit is in collusion with defendant No.2 to 11? If so, its effect ? OPD
5. Whether the suit is bad for want of prior notice under section-80 CPC? OPD
6. Whether the civil court has no jurisdiction to try the present suit as alleged? OPD
7. Whether the plaintiff has no locus-standi to file the suit? OPD.
8. Whether the plaintiff has not come with clean hands? If so its effect ? OPD.
9. Whether the defendants are entitled to special cost u/s 35-A CPC? OPD.
10. Relief.
5. The plaintiff in support of his case examined one Ram Narain, Revenue Patwari, Halqa Dhuakar as PW-1, who has stated that prior to 1954, the possession over the suit land was with one Aad Ram father of the appellant, and since Kharif, 1955, the plaintiff is recorded as tenant on payment of cash rent and since then he is in possession of the suit land. Nanak Ram, PW-2, deposed that the plaintiff and his father are in cultivating possession for more than 40/50 years on payment of cash/rent and because of custom the plaintiff has acquired the right of ownership. Hari Ram, the plaintiff, appeared as PW.3 and supported his contentions contained in the plaint. The plaintiff also tendered in evidence,
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