1. This is second appeal by Parma Nand and others plaintiffs against Suresh Chand and others defendants. The appeal has arisen out of a suit filed by Parma Nand for permanent injunction restraining Suresh Chand and Nem Chand defendants from interfering with the possession of agricultural land measuring 7 bighas and 17 biswas situate in the revenue estate of Hissan. In the alternative, the plaintiffs also sued for possession of that land. The suit was dismissed by the trial Court. On appeal, the lower appellate Court upheld the judgment and decree of the trial Court. Facts leading to the appeal are as follows:--
2. On October 17, 1940. Kanwar Sen, father of Suresh Chand and Nem Chand sold the land in dispute to Ali Mohammed for Rs. 6,500 by a registered sale deed. Consequent on partition of the country, Ali Mohammed migrated in 1947 to Pakistan. That land standing in revenue records in the name of Ali Mohammed was declared to be evacuee property and vested in the Custodian. On March 24,1955, the land vested under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter called 'the Act' in the Central Government. On February 16,1957,Suresh Chand filed suit by impleading Union of India as defendant for declaration to the effect that the sale of the land by his father in favour of Ali Mohammed was without consideration and legal necessity and the sale proceeds had been frittered away by the vendor for immoral purposes. On February 25, 1958, the land was, under Section 20 of the Act, put to sale by the Managing Officer at Public auction. The highest bid of Rs. 49,100 of Parma Nand plaintiff was accepted. He became the owner of the property and was delivered its possession. The Union of India resisted the suit on various pleas. The following issues were struck:--
'(1) Whether the civil Court has no jurisdiction?
(2) Whether the suit is barred by limitation?
(3) Whether the plaintiff has no locus standi ?
(4) Whether the suit does not lie in the present form ?
(5) Whether the valuation for Court fee and jurisdiction is not correct ?
(6) Whether the property is coparcenary property as alleged ?
(7) Whether the sale in dispute is for consideration, legal necessity and family benefit.'
3. The trial Court dismissed the suit. The matter was taken in appeal on February 24, 1959 by Suresh Chand before the District Judge. On May 11, 1959, Suresh Chand made an application saying that Parma Nand had purchased the property at public auction, that being an auction-purchaser, he was claiming to be the owner in possession and that he be impleaded as a party to the appeal. Notice of that application was issued to Parma Nand. Parma Nand appeared and was represented by a counsel. No order was, however, passed for his being impleaded as a party. The appeal was disposed of without his having been made a party to the appeal. On November 10, 1960, the appeal was allowed. As against the finding of the trial Court under issue No. 1 to the effect that civil Court had no jurisdiction, the Court of the District Judge took the view that civil Court had jurisdiction and Section 46 of the Act was no bar to the maintainability of the suit. Having given findings on other issues in favour of the plaintiff, the District Judge, while allowing the appeal, decreed the suit of Suresh Chand. The judgment given by that Court is Exhibit P.1.
4. On January 9, 1961; Parma Nand made an application that the decree passed in favour of Suresh Chand be amended to the extent of his being added as one of the respondents in the array of the parties basing his prayer on the ground that he was auction-purchaser and had interest as owner in possession of the property. He also prayed that in spite of application having been made by Suresh Chand to the effect of his being made a party and notice having been issued to him, he was not impleaded as a respondent.
5. In the order made on March 7, 1961 as its certified copy Exhibit P, 3 shows, the District Judge held that in spite of application made by Suresh Chand, name of Parma Nand had not been added as a respondent in appeal although notice of that application had been given to him and the other parties. At the end of the order, he said that he could not at that stage allow the prayer of Parma Nand being made a party and rejected his application.
6. On July 20, 1962, Parma Nand along with two others filed the suit giving rise to the present appeal for issue of permanent injunction restraining Suresh Chand from interfering with his possession of the property in dispute by virtue of his being owner having purchased it from the Union of India at public auction.
7. In the written statement filed on behalf of Suresh Chand, it was, inter alia, pleaded that Union of India was a necessary party and that the judgment of the District Judge. Exhibit P. 1 operated as a bar on the principle of res judicata.
8. The trial Court struck the following two preliminary issues:--
(1) Is the Union of India necessary party in this case?
(2) Does the judgment delivered by the District Judge, Hissar in civil appeal No. 28 of 1959(Suresh Chander v. Union of India) operate as res judicata against the plaintiffs, debarring them to file the instant suit
9. The trial Court determined both these issues in favour of Suresh Chand and dismissed the suit. Parma Nand and his co-plaintiffs preferred an appeal from the judgment and decree of the trial Court. The District Judge confirmed issues of the trial Court and upheld the dismissal of the suit.
10. Shri Roop Chand appearing on behalf of the appellants has confined his arguments to the decision given by the two Courts below on issue No. 2. It is contended by him that the decision given by the two Courts below on that issue is untenable inasmuch as the Court which tried the previous suit had no jurisdiction to try it and after the sale of the property at public auction by the Union of India to Parma Nand, the Union of India could not be held to have continued to litigate under the title of ownership.
11. The previous suit was filed by Suresh Chand on February 16, 1957 in respect of the property in dispute. It had been declared by the Custodian to be evacuee property and had vested in him. Under Section 7 of the Administration of Evacuee Property Act, 1950, it is only the Custodian, who could determine not only the question whether the property was or was not evacuee property but also the question whether that property belonged to the evacuee or belonged to Suresh Chand as claimed by him in the suit filed on his behalf. Instead of having resort to Custodian under Section 7 of that Act. Suresh Chand chose to file the suit in civil Court. Section 28 of that Act provides that orders made by the Custodian about the vesting of property in him by virtue of the property left by an evacuee, who had migrated to Pakistan, being evacuee property would be final and could not be called in question in any Court by way of appeal or revision or in an original suit, application or execution proceedings. Section 46 of that Act bars jurisdiction of civil Courts to entertain any suit or to adjudicate upon any question whether any property or right to or interest in any property is or is not evacuee property or to question the legality of any action taken by the Custodian or in respect of any matter, which the Custodian is empowered by or under this Act to determine. In the face of the provision of Section 46 of this Act, the jurisdiction of civil Courts is barred to entertain the suit. In the suit filed by Suresh Chand, he not only impugned the validity of the order of the Custodian declaring it to be evacuee property and the validity of its vesting in the Custodian but also assailed the title of Ali Mohammed to the property on the ground that the sale by registered sale deed in his favour was without consideration and legal necessity. Both these matters had to be determined by the Custodian. If Suresh Chand had any grievance, he should have knocked at the door of the Custodian by virtue of Section 7 of the Administration of Evacuee Property Act. Jurisdiction of civil Courts was barred.
12. Shri Roop Chand strongly relied upon the judgment given by he Supreme Court in Custodian. Evacuee Property, Punjab v. Jafran Begum. AIR 1968 SC 169. While considering the question whether or not the question of title to the property declared to be evacuee property. apart from the plea of the property being evacuee or not. could be gone into by civil Courts in suits. their Lordships of the Supreme Court observed as follows:--
'..................... two questions will arise in every case where the Custodian has to declare whether a property is evacuee property. These two questions are:
(i) whether a particular person has or has not become an evacuee and
(ii) whether the property in dispute belongs to him.
Both these questions have to be decided under Section 7 of the Act by the Custodian. Under Section 8 any property declared to be evacuee property under Section 7 vests in the Custodian.'
13. While dealing with the scope and effect of Sections 28 and 46 of that Act with reference to the maintainability of suits in civil Courts in respect of the property, which has been declared to be evacuee property, their Lordships observed as follows:--
'Section 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings. As we have already said, the legislature was no satisfied by merely conferring finality on such orders: it went further and expressly bared the jurisdiction of civil and revenue Courts under Section 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the Courts from entertaining or adjudicating upon any such question.'
14. By this judgment of the Supreme Court, Full Bench decision by this Court in Jafran Begum v. Custodian. Evacuee Property. Punjab. AIR 1963 Punj 40(FB) was set aside. In the Full Bench judgment, the view taken was that whereas the decision of the Custodian that particular person had or had not become evacuee and the property belonging to that person became evacuee property was final but the question pertaining to the title of the property could be determined by civil Courts. In the face of the decision of the Supreme Court. It is not open to contend that suits to contest the title of the property as against an evacuee can lie in civil courts.
15. Since trial Court had no jurisdiction to entertain the suit as filed by Suresh Chad in respect of the property belonging to Ali Mohammed evacuee, who had been declared to be evacuee and whose property had vested in the Custodian as evacuee property, the judgment and decree of that Court, even though confirmed on appeal by the District Judge is without jurisdiction. Both the Courts usurped jurisdiction of the Custodian in setting aside the orders of the Custodian as the property being the property of Ali Mohammed evacuee had vested in the Custodian and he alone could decide about the title of ownership of that property.
16. In order that the principle of res judicata incorporated in Section 11 of the Code of Civil Procedure may apply and the Court be barred from trying the subsequent suit, there must exist jurisdiction in the Court trying the first suit. (Existence of jurisdiction to try the previous suit by the first Court is a condition precedent to attract the applicability of the principle of res judicata as embodied in Section 11 of the Code of Civil Procedure. Section 11 of the Code has to be read subject to Section 9 of the Code. Section 11 pre-supposes the existence of jurisdiction in Court, which tried the first suit. If there is want of jurisdiction in the trial of the previous suit, the provisions of Section 11 of the Code of Civil Procedure could not operate as a bar against the maintainability of the subsequent suit. If the existence of jurisdiction in the first Court, which tried the previous suit in wanting, the plea of principle of res judicata raised on the footing of that decision will be without substance.
17. Shri D.N. Awasthy appearing on behalf of the contesting respondents urged that the case of Custodian, Evacuee Property, Punjab v. Jafran Begum. AIR 1968 SC 169 decided by the Supreme Court was distinguishable from the present case. I do not find any distinguishing feature in that case and the present one. In that case, the title, on the basis of which Jafran Begum filed her suit, depended upon a will, by which she claimed that the property left by her husband Muradbux had been bequeathed in her favour. She also in the alternative claimed title to one-eighth of the property on the ground of her being widow under the Muslim Law. Thus, in that suit, there was involved question of title as is involved in the suit filed by Suresh Chand. In his suit, Suresh Chand has also claimed title of ownership of property on the ground that the transaction of sale in favour of Ali Mohammed evacuee was not blinding on him and the Joint Hindu Family, of which he was a member, as that transaction was without consideration and legal necessity. Thus, in both the suits, the question involved was one of title. The view taken by the Full Bench of this Court that question of title could be gone into by civil courts has been negatived and it has been held that it is the monopolised jurisdiction of the Custodian to determine even questions of title and no suit can lie in respect thereof in a civil Court, if the property, in respect of which decree on the basis of the title is sought, is evacuee property.
18. Shri Roop Chand urged that not only the previous decision given in the suit filed on behalf of Suresh Chand cannot operate as res judicata and Section 11 of the Code of Civil Procedure becomes inapplicable on the ground of want of jurisdiction in Court to try the suit filed on behalf of Suresh Chand but in terms also Section 11 has no application and consequently the two Courts below have taken erroneous view in coming to the conclusion that the principle of res judicata barred the suit filed on behalf of Parma Nand and other appellants. The prohibitory provision against trial of subsequent suit as incorporated in Section 11 of the Code of Civil Procedure is a bar, if, inter alia, the condition of the previous and the subsequent suit between the parties litigating under the same title is satisfied. The previous suit was filed by Suresh Chand against the Union of India. It was instituted on February 16, 1957. The evacuee property was purchased at public auction on a statutory sale under Section 20 of the Act read in conjunction with Rule 87 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 on the highest bid of Rs. 49,100 given by Parma Nand having been accepted. He became owner of the property to the exclusion of the Union of India. In other words, the Union of India ceased to be the owner on that date and Parma Nand became the owner thereof. Nothing has been pointed out to me to show that Parma Nand or his subsequent associates knew that a suit in respect of the property purchased had been filed by Suresh Chand against the Union of India and they could be charged with the knowledge of the pendency of that suit. After the suit had been dismissed and appeal had been filed by Suresh Chand he made an application on May 11, 1959 praying for Parma Nand being impleaded as a party to the appeal. As is clear from the order of the District Judge dated March 7, 1961,no order directing that Parma Nand be impleaded as respondent in that appeal was passed. Parma Nand was represented by a counsel. This shows his anxiety to represent in the appeal and to contest the proceedings against the decree to be passed against his interest. After the appeal was allowed on November 10, 1960 and Parma Nand came to know about the fate of that appeal, he on January 9, 1961 made an application praying for amendment of the decree by his being added as a respondent. This again shows anxiety on his part to be a party and to contest the decision of the District Judge by way of appeal in the High Court. His application was rejected by the District Judge by holding that was not the stage to implead him as a party. In spite of the attempt made by Suresh Chand to implead him as a party and so also the attempt made by Parma Nand to be a party. One fails to understand, when in spite of the attempt made by Parma Nand for his being made party, he is not impleaded to the proceedings in appeal, how he could be treated as if he was a party especially when Union of India having parted with the property by way of sale at public auction had ceased to be the owner of the property and to represent his interest in the litigation, in which the Union of India was the defendant.
19. Shri Awasthy strongly relied upon Section 52 of the Transfer of Property Act,1882 to contend that the sale of the property in dispute effected in favour of Parma Nand was ineffective being counter to the principle of lis pendens embodied in that section. The sale of the property being by the Government is protected by Section 2 of the Government Grants Act, 1895 and is an exception to the prohibition incorporated in Section 52. Section 2 of the Government Grants Act runs as follows:--
'Nothing in the Transfer of Property Act, 1882 contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever: but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.'
20. It is evident from the language of the above provision that sales by Government are exempt from the provisions of the Transfer of Property Act. Thus, the point that Section 52 of the Transfer of Property Act was a bar to the sale in favour of Parma Nand and as such a sale being prohibited by that Section did not confer any title upon Parma Nand, has no force. The sale being good and effective. Parma Nand had become the owner and the Union of India stood divested of the ownership. It appears quite strange that the Union of India, while being a defendant in the case, having parted with the ownership of the property, which was the subject-matter of the suit being litigated by Suresh Chand, should have kept mum and not brought to the notice of the Court, with which the suit filed by Suresh Chand was pending, the fact of their having parted with their ownership in the property in favour of Parma Nand and having ceased to be its owners by allowing Parma Nand and his associates to step into their shoes. Had that fact been divulged on behalf of the Union of India to the Court, the Court have issued notice to Parma Nand. It was, under the circumstances, obligatory upon the representative of the Union of India before the Court to inform the Court that such a notice, because of the divesting of their ownership in the property in dispute and its revesting by sale in Parma Nand, should issue to the latter. The Union of India ceased to litigate under the title of ownership from the date, the property was purchased by Parma Nand and consequently no one was litigating before the trial Court, in which the suit had been filed by Suresh Chand from the date the property was purchased by Parma Nand right upto the date the appeal filed against the judgment and decree of the trial Court had been allowed by the District Judge.
21. In the result, I hold that the judgment delivered by the District Judge in Civil Appeal No. 28 of 1959. Suresh Chand v. Union of India on November 10,1960 cannot operate as res judicata against the plaintiffs so as to debar them from filing the suit giving rise to the present appeal.
22. For the foregoing reasons. I allow the appeal, send the case back to the trial Court for further trial keeping intact the finding given by the two Courts below on issue No. 1. The trial Court will proceed with the suit according to law. The costs of the appeal shall abide the event of the suit.
23. Case remanded.