The Civil Court exclusively retains jurisdiction to declare occupancy rights, negating decisions made by revenue authorities.

JUDGMENT :

Vikram Aggarwal, J.

This is defendants' appeal against the judgment and decree dated 02.12.2024 passed by the Additional District Judge, Fatehabad, dismissing the appeal against the judgment and decree dated 18.07.2019 passed by the Court of Civil Judge (Junior Division), Fatehabad, vide which the suit for declaration and permanent injunction filed by the respondents-plaintiffs, was decreed.

2. For the sake of convenience and clarity, parties shall be referred to as per their original status.

3. Plaintiffs claimed to be owners in possession of different parcels of land (fully described in the plaint) situated in Village Bhuna, Tehsil Bhuna, District Fatehabad. They sought a declaration to this effect as also to the effect that the order dated 28.02.2013 had been obtained by defendant Nos. 1 to 3 in collusion with defendant No. 4, vide which defendant Nos. 1 to 3 had been declared as occupancy tenants and owners of the suit land was illegal, void, without jurisdiction and was, therefore, not binding on the rights of the plaintiffs. It was claimed that the resultant mutation No.16302 sanctioned on 31.03.2013 was also liable to be set aside. Consequential relief of permanent injunction restraining defendant Nos. 1 to 3 from interfering in the cultivating possession of the plaintiffs over the suit land and from alienating the said land, was also sought.

4. The order dated 28.02.2013 was assailed on various grounds viz., the addresses of the plaintiffs not having been given in their case No. 149 titled as Ram Sanehi Vs. Gobind Ram etc.; no service having been effected upon them, as required by the provisions of Section 90 of the Punjab Tenancy Act (for short 'the Tenancy Act'); proclamation through newspapers for service, not being envisaged under the Tenancy Act. It was further averred that defendant Nos. 1 to 3 had claimed in their plaint that they and their predecessors, were in cultivating possession of the suit land as Gair Marusi Tenants (Non Occupancy Tenants) and, therefore, they could not be considered as occupancy tenants, meaning thereby that the declaration given by defendant No.4 to defendant Nos. 1 to 3 as occupancy tenants and owners of the suit land, was illegal and arbitrary. It was averred that the plaintiffs were reflected to be in exclusive possession as co-sharers of their part of the suit land.

5. It was claimed that the declaration of ownership of having acquired occupancy rights, could not have been given by the Assistant Collector, 1st Grade, and it was only the Civil Court, which had the jurisdiction to give such declaration.

6. It was averred that the defendants threatened to interfere into the cultivating possession of the plaintiffs over the suit land, whereafter, the plaintiffs obtained the copies of the revenue record and came to know about the order dated 28.02.2013 having been passed. Under the circumstances, the suit was instituted.

7. Defendant Nos. 1 to 3 filed a joint written statement raising certain preliminary objections. It was averred that the plaintiffs had no right to challenge the order dated 28.02.2013 since none of the plaintiffs was a party to the said lis. As regards the land owned and possessed by the plaintiffs, it was averred that the plaintiffs had filed the suit at the asking of some strangers. Objections of cause of action; locus standi, maintainability and the plaintiffs having not approached the Court with clean hands etc., were also taken.

8. On merits, it was averred that the answering defendants had impleaded all co-sharers as parties in the case titled as Ram Sanehi Vs. Gobind Ram, by giving their addresses. It was denied that the plaintiffs had not been served. It was averred that the plaintiffs had rightly been proceeded against ex-parte vide order dated 28.02.2013 and the same was not in collusion with defendant No.4. Order dated 28.02.2013 was defended and all other averments made in the plaint, were denied.

9. From the pleadings of the parties, following issues were