Gopal Singh (Dead) Through Lrs. vs Swaran Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11930 OF 2018 [Arising out of S.L.P.(C)No.27108 of 2018]

Gopal Singh (Dead) by LRs ... Appellants

Versus

Swaran Singh & Ors. ... Respondents

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This appeal is filed by the legal heirs of the

deceased defendant no.5 in the suit, aggrieved by the

judgment and order dated 16.02.2018 passed by the High Court

of Punjab & Haryana at Chandigarh in Regular Second Appeal

No.1163 of 1991 (O&M). Respondent nos.1 to 4 herein were

the plaintiffs in Suit No.496 of 1985 filed before the Sub-

Judge 1st Class, Sultanpur Lodhi, District Kapurthala in the Signature Not Verified

State of Punjab.

Digitally signed by NARENDRA PRASAD Date: 2018.12.07

In the said suit following reliefs were 17:50:56 IST Reason:

claimed by them :

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“Suit for declaration that they are absolute owners in possession being bonafide purchasers for consideration and without notice of land measuring 82 kanals 3 marlas bearing khasra nos.54/22min (4-0), 61//2 (8-0), 1min (4-18), 9(10-4), 54//22min (4-0), 61//min (4-0), 55//16 (8-0), 17 (7-7), 54//19min (4-0), 20 (8-0), 21 (8-0), 54///19min (4-0), 25/25 (6-17), and 60/5/2 (0-17), total 82 kanals 3 marlas, situated in village Kamalpur Patti, Tehsil Sultanpur Lodhi, District Kapurthala as per Jamabandi for the year 1981-82 and the order of learned Chief Sales Commissioner, Kapurthala dated 28.3.1985 vide which the sale in favour of Mohan Singh son of Alladatta of village Mothawala, Tehsil Sultanpur Lodhi, District Kapurthala dated 23.12.1964 qua the suit land has been cancelled and allotment of this land in favour of Gopal Singh defendant no.5 has been considered right is highly illegal, arbitrary, unwarranted without jurisdiction, against the provisions of law and is thus unsustainable and not binding on the rights and title of the plaintiffs over the suit land with the consequent relief of permanent injunction restraining the defendants from reauctioning the suit land or alienating it in any other manners and further restraining the defendants from interfering in the peaceful possession of the plaintiffs in the suit land in any manner.”

3. The suit schedule property was auctioned in the

restricted auction under the provisions of The Punjab

Package Deal Properties (Disposal) Act 1976 [for short ‘the

Act’]. It was originally sold to one Mohan Singh, son of

Aladitta, resident of Kamalpur in the auction held on

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23.12.1964. There was a restriction on transfer which was

held pursuant to an auction, not to alienate the suit

property till the final realisation of the loan amount taken

by the allottee for purchase of the land or till the expiry

of 10 years which is later. On the ground that the said

Mohan Singh has breached the condition, proceedings were

initiated for resumption of the land. Initial order for

resumption passed by the authority was set aside in the writ

petition by the High Court. Thereafter, further order was

passed by the Deputy Commissioner-cum-Chief Sales

Commissioner, Kapurthala on 28.03.1985. The aforesaid order

was passed by recording a finding that cancellation of the

auction was proper and further confirmed the allotment made

in favour of the appellants herein.

4. The said order dated 28.03.1985 passed by the

competent authority under the provisions of the Act and the

rules framed thereunder has become final.

5. The trial court, by recording the finding that

respondent-plaintiffs are bonafide purchasers, has decreed

the suit by declaring the order dated 28.03.1985 passed by

the competent authority under the provisions of the Act as

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null and void and granted consequential relief of injunction

restraining the defendants from dispossessing the plaintiffs

from the suit land.

6. Aggrieved by the judgment and decree of the trial

court dated 25.01.1989, the appellant herein who is

defendant no.5 has filed Civil Appeal No.57 of 1989 and

defendant nos.1 to 4 which are authorities of the State also

filed Civil Appeal No.59 of 1989. By the common judgment and

decree dated 18.01.1991, the first appellate court allowed

the appeals by setting aside the judgment and order of the

trial court mainly on the ground that in view of the

provision under Section 16 of the Act, Civil Court has no

jurisdiction to try the suit. Further, it was also held by

the appellate court that the suit is liable to be dismissed

because no notice, as required under Section 80 of the Code

of Civil Procedure (CPC) was given before filing the suit

and no application was filed to dispense with the

requirement of giving notice under Section 80(2).

7. Aggrieved by the common judgment and decree passed in

the said civil appeals by the first appellate court, the

respondent-plaintiffs have filed Second Appeal Nos.1163 and

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1164 of 1991. Said appeals are allowed by the High Court of

Punjab & Haryana at Chandigarh by judgment and decree dated

16.02.2018. Thus, the judgment and decree passed by the

trial court were restored.

8. We have heard Mr. Vikas Mahajan, learned counsel for

the appellants and Mr. Neeraj Jain, learned senior counsel

for the respondents who are on caveat and also perused the

written submissions submitted on behalf of the parties.

9. In this appeal, it is the case of the appellants that

against the initial cancellation of sale vide order dated

17.06.1975 the vendees of the original transferee have

approached the High Court in Civil Writ Petition No.5210 of

1975 and in view of the judgment dated 09.10.1979, after

hearing all the necessary parties, order dated 28.03.1985

was passed by the competent authority, cancelling the sale

and said order has become final and not challenged before

the revenue authorities. It is the case of the appellants

that the validity of the order dated 28.03.1985 cannot be

the subject matter of challenge before the civil court in

view of the bar under Section 16 of the Act. It is further

submitted that in view of the opportunity provided by the

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authorities judgment relied on by the High Court cannot be

applied having regard to the facts and circumstances. It is

submitted that in any event the finding recorded by the

first appellate court that suit is not maintainable for not

issuing notice under Section 80 of the CPC is not interfered

with and without recording any finding Second Appeal is

allowed.

10. On the other hand, it is the case of the respondent-

plaintiffs that respondent-plaintiffs are bonafide

purchasers of the suit land for a valuable consideration and

in similar cases this Court has dismissed the Special Leave

Petitions, as such, there is no ground to interfere with the

same. It is further submitted that in any event, in view of

Section 41 of the Transfer of Property Act 1882, Civil Court

is competent to entertain the suit for grant of relief as

prayed for. It is also pleaded that defect in the prayer,

if any, for quashing the order dated 28.03.1985, may not

come in the way of the respondent-plaintiffs for seeking

relief of declaration of their title which is to be

protected in view of the provision under Section 41 of the

Transfer of Property Act 1882.

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11. Having heard learned counsel on both sides, we have

perused the impugned judgment and the judgments of the lower

appellate court and the trial court.

12. It is not in dispute that originally land was put to

restricted auction to sell the land under the provisions of

the Act and the Rules framed thereunder. There are

restrictions on the alienation of the land as per the

original transfer. At first instance when the order of

cancellation was passed, matter was carried to High Court

and the High Court has disposed of the petition by directing

the authorities not to take steps for eviction of the

petitioners therein unless they are provided opportunity

before passing appropriate order. After order was passed by

the High Court, order dated 28.03.1985 was passed cancelling

the transfer and further allotment made in favour of the

appellants herein was confirmed. Section 16 of the Act

reads as under :

“16. Bar of jurisdiction and finality of orders

(1) Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act shall be final and no Civil Court shall have jurisdiction to entertain any suit or proceeding, in respect of any matter which the State Government, or any officer or

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authority apopinted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

(2) Nothing in the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, shall apply to package deal property.”

13. From a reading of the aforesaid provision, it is clear

that every order made by any officer or authority under the

said Act is final and no Civil Court shall have jurisdiction

to entertain any suit or proceeding and no injunction shall

be granted by any court or other authority in respect of any

action taken under provisions of the Act. The first

appellate court, by applying the aforesaid provision, has

clearly recorded a finding that the suit is barred and

further it was also held that suit is not maintainable

against the State and its authorities, who are defendant

nos.1 to 4, without issuing notice under Section 80 of CPC.

There is also nothing on record seeking leave from the court

for dispensing with issuance of notice as provided under

Section 80(2) of the CPC. The said aspect is not at all

dealt by the High Court. So far as the bar of the suit

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under Section 16 is concerned, the High Court referred to

Special Leave Petition(C) No.26714 of 2015, but, it appears

that the said petition is dismissed for non-prosecution.

High Court also referred to certain other earlier judgments

to support a finding on the validity of the order dated

28.03.1985. But we are of the view that when the suit

itself is barred, it is not open for the civil court to

record any finding on the validity of the order dated

28.03.1985. Even the judgment of the Full Bench of the High

Court in the case of State of Haryana & Ors. v. Vinod Kumar

& Ors.1 cannot be applied unless it is held that the order

passed by the primary authority is a nullity. As we are of

the view that the respondent-plaintiffs had an opportunity

before the authority and when the said order has become

final, in view of the bar under Section 16 of the Act, the

High Court has committed error in recording finding on the

validity of the order dated 28.03.1985. Further, as rightly

contended by counsel for the appellants that the appellate

court also has not disturbed the finding of the lower

appellate court on issue of notice as contemplated under

Section 80 of the CPC.

1 1986 (1) PLR 222

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14. For the aforesaid reasons we allow this appeal and set

aside the judgment and order dated 16.02.2018 passed in

R.S.A.No.1163 of 1991 and consequently the Civil Suit No.496

of 1985 stands dismissed, with no order as to costs.

.................... J.

[Uday Umesh Lalit]

.................... J.

[R. Subhash Reddy] New Delhi December 07, 2018

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