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Ram Sarup S/O Tule Ram JaIn Agarwal Vs. Ram Chander and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 7 of 1962
Judge
Reported inAIR1976P& H246
ActsPunjab Alienation of Land Act, 1900 - Sections 16 and 16(1); Provincial Insolvency Act, 1920 - Sections 60 and 60(2); Code of Civil Procedure (CPC) , 1908 - Sections 11; Punjab Tenancy Act, 1887 - Sections 55; Limitation Act, 1963 - Sections 3
AppellantRam Sarup S/O Tule Ram JaIn Agarwal
RespondentRam Chander and ors.
Appellant Advocate P.S. Jain and; V.M. Jain, Advs.
Respondent Advocate M.L. Sethi and; S.B. Lall, Advs.
DispositionAppeal dismissed
Cases ReferredLtd. v. Janapada Sabha Chhindwara
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....p.s. pattar, j.1. this is a regular first appeal filed by bam sarup, plaintiff, against the judgment and decree dated june 6, 1961, of the senior sub-judge, rohtak, dismissing his suit for declaration and for possession of the land in dispute measuring 1 kanal 19 marias fully described in the plaint and situated in village ghanaur, tehsil sonepat, district rohtak, (now district sonepat).2. the facts of this case are that one prabhu dial was the owner of khasra no. 1525 measuring 4 bighag and 1 biswa kham situated in village ghanaur, tehsil sonepat district rohtak, and one phulu was its occupancy tenant under him. the creditors of phulu made an application on january 12, 1937, against him in the insolvency court to have him adjudicated insolvent phulu was served in that insolvency case on.....
Judgment:

P.S. Pattar, J.

1. This is a regular first appeal filed by Bam Sarup, plaintiff, against the judgment and decree dated June 6, 1961, of the Senior Sub-Judge, Rohtak, dismissing his suit for declaration and for possession of the land in dispute measuring 1 Kanal 19 Marias fully described in the plaint and situated in village Ghanaur, Tehsil Sonepat, District Rohtak, (now District Sonepat).

2. The facts of this case are that one Prabhu Dial was the owner of Khasra No. 1525 measuring 4 Bighag and 1 Biswa Kham situated in village Ghanaur, Tehsil Sonepat District Rohtak, and one Phulu was its occupancy tenant under him. The creditors of Phulu made an application on January 12, 1937, against him in the Insolvency Court to have him adjudicated insolvent Phulu was served in that insolvency case on February 10, 1937. Phulu sold his occupancy rights in that land to his landlord Prabhu Dial on the basis of sale deed dated February 25, 1937. Prabhu Dial thus became full owner of this land and he sold this land bearing Khasra No. 1525 to Ram Chander, defendant. Phulu was declared insolvent by order dated March 11, 1937 of the Insolvency Court. The whole of the property of Phulu insolvent, including the occupancy rights in Khasra No. 1525. vested in the official Receiver. The occupancy rights of Phulu debtor in Khasra No. 1525 were sold by public auction by the Official Receiver on May 24, 1937, and were purchased by Ram Sarup, plaintiff, and sale deed dated October 5, 1937, was executed in his favour.

3. Ram Chander, defendant, who had obtained possession of Khasra No. 1525 from Prabhu Dayal, filed a suit for declaration that he was owner of Khasra No. 1525 in suit besides some other land (with which we are not concerned in this appeal). This suit was decreed by the trial Court and this decree was upheld by the lower appellate Court and also by a single Bench of the Lahore High Court Ram Sarup then filed Letters Patent Appeal No. 106 of 1941, against the judgment of the Single Bench, and it was accepted by a Division Bench of that Court on April 8, 1943, and the copy of that judgment is Exhibit P-4. The Division Bench held that the sale of the occupancy rights in the land by Phulu in favour of Prabhu Dial landlord from whom Ram Chander, plaintiff, purchased this land, took place during the pendency of the insolvency proceedings, and therefore the sale by Phulu tenant in favour of Prabhu Dial was ineffective. The appeal was accepted and the suit of the plaintiff dismissed regarding the occupancy rights of this land sold to Prabhu Dial on February 25, 1937, by Phulu insolvent.

4. Ram Chander, defendant, thereafter filed a suit on October 4, 1943, under Section 60 of the Punjab Tenancy Act to cancel the sale of occupancy rights by the Official Receiver in favour of Ram Sarup appellant in a Revenue Court, which was dismissed by the Collector 1st Grade, vide his judgment dated May 29, 1944, on the ground that it was barred by limitation. The appeal filed by Ram Chander was also dismissed by the Collector on July 6, 1945, and a revision filed by him in the Court of the Commissioner of Ambala Division was dismissed on June 12, 1946. Ram Chander further filed a revision petition in the Court of the Financial Commissioner, Punjab, which was dismissed by him on May 1, 1948, and the copy of that judgment is Exhibit P-5.

5. Thereafter, Ram Sarup plaintiff filed a civil suit for possession of this land against Ram Chander on October 14, 1943, on the ground that he is occupancy tenant of this land by virtue of the sale effected in his favour by the Official Receiver and that Ram Chander defendant was in illegal possession. Ram Chander defendant resisted the suit on various grounds. He pleaded that the original occupancy tenant had sold his rights to the landlord and the latter had in his turn sold the entire holding to him, and that the sale of the occupancy rights by the Official Receiver was void. The plaintiff's reply to this objection was that the previous decision between the parties operated as res judicata and that the defendant was debarred from raising the plea. Two issues were framed by the trial Court in that case. The first issue was whether the sale by the Official Receiver in favour of Ram Chander plaintiff of the occupancy rights was illegal and the second issue was whether the defendant was not estopped by the principle of res judicata from taking the plea contained in issue No. 1. The trial Court found issue No. 1 for the defendant, but the second issue was held in favour of the plaintiff and the suit was decreed. On appeal the Senior Sub Judge set aside the finding of the trial Court on the question of res judicata and dismissed the suit with costs. Against the decree of the Senior Sub-Judge, the plaintiff Ram Sarup preferred second appeal in the Lahore High Court, which was dismissed Ram Sarup plaintiff filed letters patent appeal against this decision, which was decided on June 16, 1948, by a Division Bench of this Court, and this decision is reported as Ram Sarup v. Ram Chandar, AIR 1949 EP 29. The Division Bench held that the plea raised by the defendant-landlord that the sale of the occupancy rights by the Official Receiver in favour of Ram Sarup was not binding upon him and should, therefore, be set aside was a plea, which was exclusively triable by a Revenue Court and, therefore, the letters patent appeal was accepted and the judgment of the learned Single Judge was set aside and the case was sent back to the trial Court with the direction that he should call upon the defendant to make his plea regarding the avoidance of the sale clear and definite in his written statement by making a suitable amendment thereof and after that give the plaintiff an opportunity of raising a counter-defence to the defendant's plea, if he wished to do so, by filing a replication and then to return the plaint for presentation to the Collector in accordance with the procedure laid down in proviso 1 to Sub-section (3) of Section 77 of the Punjab Tenancy Act. In accordance with this order of the High Court, the plaint was returned to Ram Sarup plaintiff for presentation to the Collector. Ram Sarup plaintiff presented this plaint before Mr. Kapur, Sub-Divisional Officer Sonepat, who was Assistant Collector 1st Grade with powers of Collector. However, during the pendency of this case, Mr. Kapur was transferred and he was succeeded by Mr. B.S. Manchanda, who was Assistant Collector 1st Grade, Sonepat. He dismissed the suit of the plaintiff on September 24, 1951, and the copy of that order is Exhibit D-18. It is alleged that Mr. Manchanda had no jurisdiction to hear that case and his judgment is without jurisdiction. In pursuance of this judgment mutation of this land was attested by the revenue authorities in the name of Ram Chander on May 30, 1954. The plaintiff then filed an appeal against the judgment of Shri Manchanda before the Commissioner, which was dismissed. He then filed a revision petition before the Financial Commissioner, which was also dismissed. The present suit was filed by the plaintiff for a declaration that he is owner in possession of the land in suit measuring 1 Kanal 19 Marias, which is part of Khasra No. 442 min. (whose previous Khasra No. was 1525) and in the alternative it is prayed that if he is not found to be in possession of this land then decree for possession may be passed.

6. The suit was contested by Ram Chander defendant. He alleged that the sale of the occupancy rights of Khasra No. 1525 by the Official Receiver in favour of Ram Sarup plaintiff was effected without issuing any notice under Section 55 of the Punjab Tenancy Act to him and, therefore, the same was illegal and was not binding on him and it may be set aside. He further alleged that the sale in favour of the plaintiff Ram Sarup by the Official Receiver was invalid, as it violated the provisions of the Punjab Land Alienation Act, because Ram Sarup plaintiff was a non-agriculturist whereas the occupancy tenant was an agriculturist. On these pleadings of the parties, the following issues were framed by the trial Court:--

1. Is the plaintiff in possession of the land in dispute and thus is the suit in the present form competent ?

2. Whether the plaintiff has become the owner of the land in dispute ?

3. Whether the suit is within time ?

4. Whether occupancy rights of Phullu deceased were rightly and validly transferred to the plaintiff?

5. Are the judgments referred to in para. No. 11 of the plaint without jurisdiction and hence not binding upon the plaintiff ?

6. What is the effect of the judgment of the High Court dated 8-4-1943 and judgment of the Financial Commissioner dated 1-5-1948?

7. Whether the sale in dispute is against the provisions of the Punjab Alienation Land Act, if so to what effect ?

8. Whether the objection of the plaintiff regarding jurisdiction is barred by res judicata

7. The Senior Sub-Judge decided issues Nos. 1 to 7 against the plaintiff and decided issue No. 8 in favour of the defendant. As a result, the suit of the plaintiff was dismissed with costs. Feeling aggrieved, Ram Sarup plaintiff filed this regular first appeal.

8. Mr. Pritam Singh Jain, the learned counsel for the appellant, contested the decision of the trial Court on issues Nos. 2 to 8. No arguments were addressed on issue No. 1. The trial Court dealt with and decided issues Nos. 2, 4 and 7 together as the same are inter-connected. I shall also discuss these three issues together. The land in suit measuring 1 Kanal 19 Marias bears Khasra No. 442 min and its previous Khasra No. was 1525 measuring 4 Bighas 1 Biswa, and is situated in village Ghanaur. Khasra No. 1525 was owned by Prabhu Dial and occupancy tenant of this land under him was Phulu. The creditors of Phulu made an application on January 12, 1937, against him in the Insolvency Court for his .adjudication as insolvent. Phulu tenant was served in that insolvency case on February 10, 1937. He (Phulu) sold his occupancy rights in that land in favour of his landlord Prabhu Dial on the basis of a sale deed dated February 25, 1937. After that Prabhu Dial sold this land to Ram Chander defendant-respondent. Phulu was declared insolvent by order dated March 11, 1937. The Official Receiver sold Phulu's estate including his occupancy rights in Khasra No. 1525, which had vested in him by virtue of the order of adjudication, to Ram Sarup plaintiff-appellant on May 24, 1937, and a sale deed dated October 5, 1937, was issued in his favour.

9. The validity of the sale by public auction of the occupancy rights of Khasra No. 1525 by the Official Receiver in favour of Ram Sarup is attacked on the ground that the provisions of Section 55 of the Punjab Tenancy Act were not complied with and no notice was issued to Prabhu Dial landlord or Ram Chander defendant and so it was voidable at the instance of the landlord under Section 60 of that Act. Its validity is also attacked on the ground that the Official Receiver had no right to sell this land in view of the provisions of Section 16 (1) of the Punjab Alienation of Land Act, 1900 (Act No. 13 of 1900). I set out below the relevant provisions of law for facility of reference.

10. Section 55 of the Punjab Tenancy Act, 1887, runs as under:--

'(1) A right of occupancy under Section 5 may be sold in execution of a decree or order of a Court.

(2) But notice of an intended sale of any such right shall be given by the Court to the landlord, and, if at any time before the close of the day on which the sale takes place the landlord pays to the Court or to the officer conducting the sale a deposit of twenty five per centum on the highest bid made at the sale, he shall be declared to be the purchaser instead of the person wh0 made that bid.'

11. Section 60 of the Punjab Tenancy Act reads as follows:--

'Any transfer made of a right of occupancy in contravention of the foregoing provisions of this Chapter shall be voidable at the instance of the landlord.'

12. Section 60(2) of the Provincial Insolvency Act, 1920, runs as follows:--

'60(2) Nothing in this Act shall be deemed to affect any provisions of any enactment for the time being in force prohibiting or restricting the execution of decrees or orders against immovable property; and any such provisions shall be deemed to apply to the enforcement of an order of adjudication made under this Act as if it were such a decree or order.'

13. Section 16 (1) of the Punjab Alienation of Land Act runs as under:--

'No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil Court, whether made before or after the enforcement of this Act.'

14. Sections 28, 59 and 60 of the Provincial Insolvency Act make it clear that the Receiver derives authority to deal with the property of the insolvent from the order of adjudication and when he proceeds to sell it he is acting in 'enforcement' of that order. The combined effect of these three sections is that the Receiver cannot sell any immovable property of the insolvent, the sale of which Is prohibited or restricted by Statute. The words, 'for the time being in force' in Section 60 (2) of that Act mean in force when the Receiver is proceeding to sell the property of the insolvent vide Dhani Ram v. District Official Receiver, AIR 1943 Lab 19 (FB).

15. It is undisputed that Phulu occupancy tenant was a Gaur Brahmin of District Rohtak and thus a member of a statutory agricultural tribe in that District. The Punjab Alienation of Land Act No. 13 was in force in the year 1937. It is well-settled law that Section 16 (1) of that Act did not prohibit the attachment of the land belonging to an agriculturist in execution of a decree against him. This section overrides the provisions of the Provincial Insolvency Act in respect of all matters which are done in enforcement of the order of adjudication. Therefore, land belonging to a member of a notified agricultural tribe is liable to attachment in execution of a money decree passed against him and in the event of his being adjudicated insolvent such land vests in the Receiver, who has the power to effect a temporary alienation or create a self-redeeming mortgage. An act done by a Receiver in pursuance of the authority which he derives from the order of adjudication is nothing but an enforcement of the order of adjudication and sale of land belonging to a member of agricultural tribe is subject to the provisions of Section 16 of the Punjab Alienation of Land Act. The Receiver in whom the land of a notified agriculturist insolvent vests does not possess the power to sell his land to another agricul-tourist -- vide Mirza v. Jhanda Ram, AIR 1930 Lah 1034 and Manji v. Girdhari Lal, AIR 1921 Lah 44, and Ram Rattan v. Fazal Haq, AIR 1939 Lah 346. In the instant case the occupancy rights of Khasra No. 1525 of Phulu insolvent vested in the Receiver from January 12, 1937, the date when the application for adjudication as insolvent was made in the Insolvency Court, vide Section 28(7) of the Provincial Insolvency Act. No notice as required by Section 55 (2) of the Punjab Tenancy Act was given by the Official Receiver to the landlord Prabhu Dial or Ram Chander defendant, and, therefore, the auction sale by the Official Receiver in favour of Ram Sarup plaintiff was not valid. . This sale was admittedly voidable at the instance of the landlord under Section 60 of the Punjab Tenancy Act.

16. As held above, the sale by the Official Receiver in favour of Ram Sarup of the occupancy rights of Khasra No. 1525 in dispute was voidable. The Punjab Alienation of Land Act No. 13 of 1900 was repealed with effect from April 4, 1951. Admittedly, this sale in favour of the plaintiff Ram Sarup was not avoided by Ram Chander landlord till April 4, 1951. Mr. P.S. Jain, the learned counsel for the appellant, contended that after the repeal of the Punjab Alienation of Land Act the sale in favour of the plaintiff could not be avoided under Section 16 (1) of the Punjab Alienation of Land Act. In support of this contention he relied on a Full Bench decision of this Court reported as Amar Singh Uttam Singh v. R. L. Aggarwal, AIR 1960 Punj 312, wherein it was held as under:--

'A, being an owner of land jn the District of Ludhiana sold this land to S, a Muslim non-agriculturist, sometime before 1947. The Punjab Alienation of Land Act was at that tune in force and so the sale could not become absolute until it had been sanctioned by the Deputy Commissioner as required by Section 14 of the Act. No such sanction was applied for or given and in 1947, S migrated to Pakistan. A collateral of A applied in May, 1948 for permission to purchase the land which he treated as evacuee property, but no orders were passed on the application until October, 1951, when the Punjab Alienation of Land Act ceased to exist because it was repealed by the Adaptation of Laws (Third Amendment) Order, 1951. The Deputy Commissioner then passed an order rejecting the application and holding that the sale in favour of S was to be deemed a usufructuary mortgage. Held that the sale in favour of S could not take effect as a mortgage after the repeal of the Act and so A had no further interest in the land and was not entitled to redeem it. The repeal of the Punjab Alienation of Land Act put an end to whatever interests contingent or inchoate, which A had in the land. There remained no Deputy Commissioner under the Act to give sanction which had never been refused, and had the Act remained in force sanction would have been granted. Therefore A had no right now to claim redemption of the land.' This decision is aptly applicable to the present case. In the instant case, the sale of the occupancy rights by public auction by the Official Receiver in favour of Ram Sarup was not avoided till April 4, 1951, and therefore in view of the law laid down in Amar Singh's case (supra), this sale cannot be attacked by Ram Chander landlord on the ground that it violates the provisions of Section 16 (1) of the Punjab Alienation of Land Act. The decision of the trial Court on Issue No. 7 is, therefore, reversed and this issue is decided against the defendant.

17. Ram Sarup filed a civil suit for possession of Khasra No. 1525 on October 14, 1943, against Ram Chander on the allegation that he had purchased the occupancy rights of this land from 'the Official Receiver and was consequently entitled to get possession of the land as an occupancy tenant. Ram Chander resisted this suit on various grounds. He pleaded that the sale by the Official Receiver in favour of Ram Sarup was invalid and that the previous decision between the parties operated as res judicata on this point. The suit was decreed by the trial Court. However, this decree was set aside on appeal by the Senior Sub-Judge on the question of res judicata and the suit was dismissed. Against this decree of the first Appellate Court, Ram Sarup filed an appeal in the Lahore High Court, which was dismissed by a learned Single Judge. Ram Sarup then filed Letters Patent Appeal. one of the points raised on behalf of Ram Sarup plaintiff-appellant was that the suit involved a question relating to setting aside of the transfer of occupancy rights at the instance of the landlord and it was not triable by the Civil Court and it is triable by the Revenue Court. It was also urged that the suit of Ram Chander under Section 60 of the Punjab Tenancy Act to cancel the sale of occupancy rights by the Official Receiver in his favour had been dismissed by the Revenue Court as time-barred and, therefore, his plea that the sale in his (Ram Sarup's) favour is invalid is barred by res judicata. On these facts, the Division Bench, which decided this appeal and which is reported as Bam Sarup v. Ram Chandar, AIR 1949 EP 29 held as follows:--

'It is true that the Limitation Act contemplates suits of the kind mentioned in Section 60, Punjab Tenancy Act, to avoid the transfer of occupancy rights in contravention of provisions of Chapter V, and prescribes a period of limitation therefor, but from this it cannot be concluded that the intention of the Legislature was that when a landlord wishes to exercise his option given to him by Section 60 and avoid a transfer made without his content or in contravention of the provisions of law, he can do so only by a suit

Where the landlord is in possession and is sued for possession by the transferee, he can raise the plea as a defendant that the transaction is voidable by him, his consent not having been obtained to it, and that he avoids it. Dismissal of his previous suit for avoiding the transfer, as having been barred by limitation, does not bar the plea in defence. Limitation bars the remedy and does not destroy the right. The only cases where a man loses not only the remedy but also the right by his failure to bring an action are those falling under Section 28, Limitation Act.'

It was further held as under:--

'Under proviso to Section 77 (3) (Punjab Tenancy Act) where in a suit cognizable by and instituted in a civil Court it becomes necessary to decide any matter which can under Sub-section (3) to Section 77 be heard and determined only by a Revenue Court, Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order 7, Rule 10, Civil Procedure Code and return the plaint for presentation to the Collector. Where the suit instituted in the Civil Court did not fall in the category of suits mentioned in Clause (h) of Sub-section (3) of Section 77, but the plea raised by the defendant landlord that the sale was not binding upon him and should, therefore, be set aside, made it necessary for the Court to decide the matter which could only be heard and decided by a Revenue Court under Sub-section (3). Held that the case came within the ambit of the proviso to Section 77 (3) and the proper procedure was to return the plaint as laid down therein.'

The plaint was then returned to Ram Sarup plaintiff for presentation to the Revenue Court. He presented the same to the Sub-Divisional Officer, Sonepat. Shri B.S. Manchanda, Sub-Divisional Officer, (Civil) Sonepat, by his judgment dated September 24, 1951, whose copy is Exhibit D-18, set aside the sale by the Official Receiver by Public auction in favour of Ram Sarup, as the provisions of Section 55 of the Punjab Tenancy Act were not complied with and dismissed this suit. The appeal and the revision filed by Ram Sarup before the Collector and the Commissioner respectively were also dismissed. Ram Sarup then filed a further revision in the Court of the Financial Commissioner, who dismissed the fame on September 22, 1956, vide copy of the order Exhibit D-1. After the dismissal of his revenue suit, Ram Sarup filed Civil Writ Petition No. 69 of 1957 in this Court, which was dismissed on October 25, 1957, and the copy of that judgment is Exhibit D-2. The only point pressed in the writ petition was that the point of res judicata was not decided by the Financial Commissioner and this contention was repelled. It is well settled law that the decision of a Court of Special jurisdiction (Revenue Court) will be res judicata in a Court of general jurisdiction (Civil Court) provided the decision of the Court of special jurisdiction was within the jurisdiction of that Court. A Revenue Court's decision is binding on the Civil Court so far as the issue raised before it is raised again in the Civil Court. Vide Daulat Ram v. Munshi Ram, AIR 1932 Lah 623. In the instant case the suit was triable by the Revenue Courts and the decision dated September 24, 1951, of the Assistant Collector 1st Grade, copy whereof is Exhibit D-18, which was maintained by the superior Revenue Courts, that the sale of the occupancy rights of the land in suit by the Official Receiver in favour of Ram Sarup plaintiff-appellant was invalid and was set aside, operates as res judicata in this case.

18. The Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 came into force with effect from June 1952, and at that time Ram Sarup plaintiff had no occupancy rights in the land in suit because the sale in his favour had been avoided by the abovementioned judgment dated September 24, 1951. Therefore, he could not become the owner of the land in suit.

19. For the reasons given above, it is held that the sale of occupancy rights of the land in suit by the Official Receiver in favour of the plaintiff was invalid being against the provisions of Section 55 of the Punjab Tenancy Act and the plaintiff is not the owner of this land. The trial Court rightly decided issues Nos. 2 and 4 against the plaintiff and this decision is affirmed. However, the decision of the trial Court on issue No. 7 is reversed and it is decided against the defendant.

20. The plaintiff Ram Sarup filed this suit for a declaration that he is owner and in possession of this land and in the alternative he prayed for a decree for possession of the land in suit. The plaintiff had only six years' period of limitation to file the suit for declaration and this suit was admittedly barred by limitation. It is undisputed that the plaintiff was not in possession of the land in suit at the date of filing of this suit, consequently the suit for declaration did not lie. However, the suit for possession of the land in suit is competent and for this relief he had twelve years' period of limitation under Article 142 of the Indian Limitation Act, 1908. It is a case of possession and dispossession, and therefore, the plaintiff was to prove his possession within twelve years from the date of the filing of this suit. The suit was filed on June 16, 1960. Previously, the plaintiff filed civil suit for possession of this land against Ram Chander on October 14, 1943, on the ground that he had purchased the occupancy rights from the Official Receiver and was decreed by the trial Court and in execution of that decree Ram Sarup plaintiff obtained possession of this land on November 17, 1944, vide copy Exhibit P-11 of the entry in the Roznamcha of the Patwari. At that time the crops were standing in the land and he was given only formal possession of this land. In the Jam-abandi for the year 1945-46, copy whereof is Ext. P-21, this Khasra No. 1525 is recorded in possession of Ram Sarup plaintiff as occupancy tenant. This land was recorded as Rosli in the Jamabandi. He continued in possession of this land till Rabi, 1948, vide copy of the Khasra Girdawari, Exhibit P-13. It shows that Ram Sarup was in possession of this land from Kharif, 1946, to Rabi, 1948. The copy of the Khasra Girdawari of this Khasra No. 1525 for Kharif, 1948, Kharif and Rabi, 1949, and Rabi, 1950, has not been placed on the file. However, Ram Chander defendant is recorded in possession of this land from Kharif, 1950, to Rabi, 1957, in the Khasra Girdawari, whose copies are Exhibits D-6 and D-7. The plaintiff was in possession of this land in Rabi, 1948. Therefore, his possesssion is to be presumed to Continue unless otherwise proved. The suit was filed on June 16, 1960. Therefore, the possession of the plaintiff of the land in suit within 12 years prior to the filing of the suit is established. It is, therefore, held that the suit of the plaintiff for possession of the land is within time and issue No. 3 is decided accordingly.

21. The judgments referred to in para No. 11 of the plaint are judgment dated September 24, 1951, of Shri B.S. Manchanda, I. A. S. S. D. O. (Civil) Sone-pat, whose copy is Exhibit D-18, the judgment of the Collector, Rohtak, dated July 23, 1953, dismissing the appeal against the judgment Exhibit D-18, judgment dated December 22, 1955 of the Commissioner, Ambala Division, and the judgment dated September 22, 1956, of the Financial Commissioner, dismissing the revision petitions filed by Ram Sarup appellant. The copy of the judgment dated September 22, 1956, of the Financial Commissioner is Exhibit D-1.

22. Mr. P.S. Jain, the learned counsel for the appellant, urged that the suit was triable by the Collector, that Shri B.S. Manchanda was not invested with the powers of the Collector and, therefore, his judgment, whose copy is Exhibit D-18, and the judgment of the Collector passed on appeal and also the judgments of the Commissioner and Financial Commissioner passed in revision petitions are void and ineffective. In support of this contention, he did not cite any decision, but relied on proviso (2) to Sub-section (3) of Section 77 of the Punjab Tenancy Act, which reads as follows:--

'On the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000/- or the matter involved is of the nature mentioned in Section 77 (3), First Group, of the Punjab Tenancy Act, 1887, and in other cases may send the suit to an Assistant Collector of the first grade for decision.'

23. It js undisputed that the value for the purpose of jurisdiction of that suit was only Rs. 42/3/-. The matter involved in this suit was not of the nature mentioned in First Group of Section 77 (3) of that Act and, therefore, it was not exclusively triable by the Collector. This suit fell under Second Group of Section 77 (3) of the Act and was triable by an Assistant Collector 1st Grade. Shri B.S. Manchanda, I.A.S., who was invested with powers of Collector 1st Grade, had the jurisdiction to try the suit and his judgment is valid. It was then urged by the counsel for the appellant that since this suit was presented in the Court of the Collector, therefore, the Collector alone could try it unless he transferred the same to some other Court of competent jurisdiction. This contention is misconceived and is rejected. Shri Kapar, Sub-Divisional Officer, Sonepat, in whose Court the plaint was presented after the decision of the High Court was Assistant Collector 1st Grade and he was also invested with powers of a Collector. He was transferred during the pendency of the suit and was succeeded by Shri Manchanda, who decided the case. Shri Manchanda had inherent jurisdiction to try the case and his decision is perfectly valid and legal. For all these reasons, it is held that there is no substance in the contention of the counsel for the appellant and the same is rejected.

24. After the decision of the Financial Commissioner in the above-mentioned revenue suit, Ram Sarup filed Civil Writ No. 67 of 1957 in this Court to set aside the order dated September 22, 1956, copy whereof is Exhibit D-l, of the Financial Commissioner. This writ petition was dismissed by a Single Bench of this Court on October 25, 1957, vide copy of the judgment Exhibit D-2. The only point urged before the High Court was that the Financial Commissioner did not decide the question of res judicata. This contention was rejected and the writ petition was dismissed. Mr. M.L. Sethi, the learned counsel for the respondents, contended that in that writ petition no objection was taken by Ram Sarup appellant that the judgments referred to in Issue No. 5, operated as res judicata and, therefore, on the principles of constructive res judicata he is debarred from taking this objection in this suit and in support of this contention he relied on Union of India v. Nanak Singh, AIR 1968 3C 1370. This contention cannot be entertained as the copy of the writ petition has not been placed on the file. Moreover, it was held in Amalgamated Coalfields, Ltd. v. Janapada Sabha Chhindwara, AIR 1964 SC 1013, that the decision in a previous case does not operate, (as constructive res judicata in subsequent writ petitions in the High Court. Therefore, the counsel for the respondents is not permitted to raise this contention as it cannot be decided for want of copy of the writ petition and the return to know the pleadings of the parties.

25. For the reasons given above, it is held that the judgments referred to in para. No. 11 of the plaint are perfectly valid and legal and are binding on the plaintiff. It was held in these judgments by the Revenue Courts, who had jurisdiction to decide, that the sale in favour of Ram Sarup appellant of the occupancy rights was invalid and was set aside. These decisions operate as res judicata. The decision of the lower Court on issues Nos. 5 and 8 is correct and the same is affirmed.

26. Exhibit P-4 is the copy of the judgment of the High Court dated April 8, 1943, and Ext. P-5 is the copy of the judgment dated May 1, 1948, of the Financial Commissioner, which are referred to in issue No. 6. After the auction sale of the occupancy rights of Khasra No. 1525 in favour of Ram Sarup by the Official Receiver, Ram Chander landlord filed a civil suit for declaration that the sale by the Official Receiver in favour of Ram Sarup appellant did not affect his interest and was not binding on him. The suit was resisted by Ram Sarup. This suit was decreed by the trial Court on 28th February, 1939, and appeal filed by Ram Sarup against this decree was dismissed by the Senior Sub-Judge and the second appeal was dismissed by a Single Bench of the Lahore High Court on April 1, 1941. Ram Sarup then filed Letters Patent Appeal No. 106 of 1941 in the Lahore High Court. It was held by the Division Bench in the Letters Patent Appeal that the sale by Phulu in favour of Prabhu Dial of the occupancy rights took place during the proceedings of the insolvency case and, therefore, Prabhu Dial and Ram Chander did not acquire any right in the occupancy rights and the same vested in the Official Receiver. The appeal was accepted and the suit of Ram Chander plaintiff was dismissed in regard to the occupancy rights transferred in favour of Prabhu Dial on February 25, 1937, by Phulu, who sold the same to Ram Chander, and the copy of the judgment is Exhibit P-4. No finding in Exhibit P-4 was given that the sale in favour of Ram Sarup by the Official Receiver of the occupancy rights of the land was valid.

Moreover, Ram Sarup could not raise the plea in that suit that the sale by the Official Receiver to him was valid because if he had raised that plea then the suit would have become exclusively triable by the Revenue Courts according to the provisions of proviso to Section 77 (3) of the Punjab Tenancy Act as was held in Ram Sarup's case (AIR 1949 EP 29) (supra). There was also no issue in that case whether the sale effected by the Official Receiver was valid or not. Therefore, the question relating to the sale of the occupancy rights by the Official Receiver to Ram Sarup could not be taken to have been finally decided in that suit and so the decision in that previous suit did not operate as res judicata.

27. After the decision of the High Court in the above-mentioned Civil Suit, copy whereof is Exhibit P-4, Ram Chander filed suit on October 4, 1943, under Section 60 of the Punjab Tenancy Act to set aside the sale of the occupancy rights by the Official Receiver in favour of Ram Sarup. The Assistant Collector dismissed his suit as barred by limitation. His appeal was dismissed by the Collector. Ram Chander then filed a revision petition before the Commissioner and also before the Financial Commissioner, which were dismissed. The copy of the decision of the Financial Commissioner passed in revision is dated May 1, 1948, and its copy is Exhibit P-5 The Revenue Courts did not go into the question of validity of the sale by the Official Receiver in favour of Ram Sarup and, therefore, the decision Exhibit P-5 did not operate as res judicata. Though the remedy of Ram Chander to have . the sale set aside by civil suit was barred by time, but he being in possession of the land it was open to him to question the legality of the sale by the Official Receiver in favour of Ram Sarup on the allegation that his consent under Section 55 of the Punjab Tenancy Act was not obtained as limitation does not debar a person from raising a plea in defence. It is, therefore, held that the judgments, Exhibits P-4 and P-5, mentioned above do not operate as res judicata and the decision of the lower Court on issue No. 6 is correct and is affirmed.

28. No other point was urged. As a result, this Appeal No. 7 of 1962 filed by Ram Sarup plaintiff is dismissed, but there will be no order as to costs.

Tewatia, J.

29. I agree.


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