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Charanji Lal Jagannath Arora and anr. Vs. Smt. Inder Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 242 of 1959
Judge
Reported inAIR1961P& H466
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 2, 9, 10 and 36; Limitation Act, 1908 - Schedule - Article 120
AppellantCharanji Lal Jagannath Arora and anr.
RespondentSmt. Inder Devi and anr.
Appellant Advocate H.L. Sibal and; M.M. Punchhi, Advs.
Respondent Advocate Atma Ram, Adv.
DispositionAppeal dismissed
Cases ReferredAmar Singh v. Custodian of Evacuee Property
Excerpt:
.....and rightly so. - verified claim' means any claim registered under the displaced persons (claims) act, 1950 (xliv of 1950) in respect of which a final order has been passed under that act or under the displaced persons (claims) supplementary act, 1954 (xii of 1954), and includes any claim registeredon or before the 31st day of may, 1953, under the east punjab refugees (registration of claims) act, 1948, (east punjab act xii of 1948) or under the patiala refugees (registration of land) (claims) ordinance, 2004 (order 10 of 2004 bk) and verified by any authority appointed for the purpose by the government of punjab, the government of patiala and east punjab states union, as the case may be, which has not been satisfied wholly or partially by the allotment of any evacuee-land under the..........district montgomery. on 27th february, 1941, he excuted a gift of 531 kanals (65 acres) out of his landed property in favour of his grandson, jagdish chandar, by means of the registered deed, exhibit p-8, subsequently, he made gift of some other portions of his landed property to his remaining grandsons, namely, the three appellants, kishan chand, brij lal and choranji lal. 4. on the death of jagdish chandar somewhere in october, 1942, the property which he had obtained under the gift deed, ex. p-8, was taken possession of by his grandfather ganesh das, and he got the same mutated in his name on 12th october, 1942, as evidenced by the copy of the mutation,exhibit p-4. thereupon, shrimati indar devi, naturally, felt aggrieved and on 28th august, 1946, brought a suit in forma pauperis.....
Judgment:

Gurdev Singh, J.

1. This is an appeal under Clause 10 of Letters Patent against the judgment of a learned Single Judge, dated 25th May, 1959, in Regular Second Appeal No. 1152 of 1957. To appreciate the points in controversy between the parties, it is necessary to advert to the facts of the case which, in brief, are as follows:-

2. Ganesh Das was the head of the family to which the parties belong. He had two sons, Behari Lal, defendant No. 4, and Jagan Nath, father of Choranji Lal, Brij Lal and Kishan. Chand (defendants 1 to 3). Shrimati Inder Devi plaintiff-respondent is the wife of Behari Lal. They had a son Jagdish Chander who died in October, 1942.

3. Before the partition of the country, the parties were residing in district Montgomery, now in West Pakistan. Ganesh Das held 184 acres of land in village Malka Hans in district Montgomery. On 27th February, 1941, he excuted a gift of 531 kanals (65 acres) out of his landed Property in favour of his grandson, Jagdish Chandar, by means of the registered deed, Exhibit P-8, Subsequently, he made gift of some other portions of his landed property to his remaining grandsons, namely, the three appellants, Kishan Chand, Brij Lal and Choranji Lal.

4. On the death of Jagdish Chandar somewhere in October, 1942, the property which he had obtained under the gift deed, ex. P-8, was taken Possession of by his grandfather Ganesh Das, and he got the same mutated in his name on 12th October, 1942, as evidenced by the copy of the mutation,Exhibit P-4. Thereupon, Shrimati Indar Devi, naturally, felt aggrieved and on 28th August, 1946, brought a suit in forma pauperis claiming the possession of the property which was held by Jagdish Chandar under the gift deed, Exhibit P-8.

Before that suit could be decided, Ganesh Das died in May, 1947, and then came the Partition of the country. All the members of the family migrated to India. It became impossible for Shrimati Indar Devi to prosecute her suit in Pakistan, and the same was dismissed in default on 27th January, 1948.

5. In 1948 the three sons of Jagan Nath (defendants 1 to 3) were allotted some agricultural land in lieu of the Property left in Pakistan at the time of the Partition, including the land that had been gifted by their grandfather Ganesh Das to the late Jagdish Chandar as far back as 27th February, 1941. Indar Devi, being the mother of Jagdish Chandar, naturally felt aggrieved and brought a suit for possession of her share of the allotted land.

This was, however, later withdrawn on 24th June, 1952, but she was granted permission by the Court, vide order. Exhibit P-15, to bring a fresh suit. On 18th August, 1952, Shrimati Indar Devi brought a fresh suit, out of which this appeal has arisen, for possession of the land allotted to the defendants 1 to 3 in lieu of the land left by her son Jagdish Chandar in Pakistan. She obtained a decree on 31st October, 1953, but the same was set aside by the Additional District Judge, Feroze-pur, on 13th February, 1954, when the case was remanded for determining the share or the area to which Indar Devi would be entitled.

The land in dispute was situate in two different villages, namely Jalalabad and Fattuwala. The learned trial Judge found that Shrimati Indar Devi was entitled to claim 13 standard acres and 14 units out of the allotted land situate at Jalalabad and 12 standard acres and 2 units at Fattuwala, He accordingly, submitted his report on 27th May, 1954,

6. This time, the appeal came up for bearing before the District Judge, Ferozepur, who accepted the same holding that the Civil Courts had no jurisdiction to try the suit in view of the provisions of Section 46 of the Administration of Evacuee Property Act. Accordingly, he rejected the plaint under Order 7 Rule 11 of the Civil Procedure Code. Aggrieved by this, the plaintiff, Shrimati Indar Devi, preferred a second appeal to this Court (R. S. A. 1125 of 1954), and the same was accepted by Bishan Narain, J., on 15th October, 1956.

The learned Judge held that though a suit for possession could not be tried by the Civil Courts, there was nothing in Section 46 of the Administration of Evacuee Property Act to debar them from granting a declaration in respect of the property in dispute. The plaintiff, Indar Devi, was permitted to amend her plaint accordingly, and the case was remanded to the trial Court for that Purpose.

7. On 22nd November, 1956, Shrimati Indar Devi put in an amended Plaint, seeking declaration that she was an heir of her deceased son, Jagdish Chandar, and thus entitled to 13 standard acres 14 units of land at village Jalalabad and 12 standardacres 2 units at village Fattuwala out of the property allotted to defendants 1 to 3. The allotment of land at Fattuwala was later cancelled, and instead the defendants were given some land in village Chanan Khera. This led to the consequential amendment in the Plaint of the suit filed by Shrimati Indar Devi.

8. In contesting the suit, the defendants 1 to 3 not only asserted that the parties were governed by custom and Shrimati Indar Devi was not the heir of her deceased son, Jagdish Chandar, but they also denied that their grandfather Ganesh Das ever made any valid gift in favour of Jagdish Chandar, or that they had been allotted any land in lieu of the Property alleged to have been held by Jagdish Chandra under the gift, dated 27th February, 1941.

Despite the decision of Bishan Naran, J., in Regular Second Appeal No. 1125 of 1954, the defendants pleaded that neither the suit for mere declaration was maintainable nor was it within the cognizance of the Civil Courts. They further pleaded that the suit was barred by limitation and not competent in view of the dismissal of the suit which Shrimati Indar Devi had instituted in Pakistan before the Partition of the country.

9. The matters in controversy between the parties gave rise to 11 issues reproduced in the order of the learned Single Judge. The findings on almost all the issues were in favour of the plaintiff. The learned trial Judge found that the gift, dated 27th February, 1941, was validly made by Ganesh Das in favour of the plaintitf's son, Jagdish Chandar, that the parties were governed by Hindu Law, under which Shrimati Indar Devi was entitled to inherit the property left by her son, that the suit was maintainable and within time, and that the property allotted to defendants 1 to 3 in villages Jalalabad and Chanan Khera included the property allotted in lieu of the land which was held by Jagdish Chandar under the gift deed, Exhibit P-8.

The learned Subordinate Judge, however, refused to grant the declaration prayed for by Shrimati Indar Devi on the ground that in view of the provisions of Section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954, the dispute relating to the allotted land could only be adjudicated upon by a Settlement Commissioner appointed under that Act, as Section 36 of that Act barred the jurisdiction of Civil Courts to entertain the suit. Accordingly, the Subordinate Judge, by his order, dated 9th January, 1957, rejected the plaint under Order 7 Rule 11 of the Civil Procedure Code, leaving the parties to bear their own costs.

10. Shrimati Indar Devi went up in appeal, which was accepted by Shri H S. Bhandari, Additional District Judge, Ferozepur, on 15th July, 1957. He held that there was nothing in the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954, to debar the Civil Courts from entertaining the suit, and after affirming the decision of the trial Court on other issues, he decreed Shrimati Indar Devi's claim for declaration but left the parties to bear their own costs throughout. It is against this judgment and decree the defendants 1 to 3 preferred Regular Second Appeal No. 1152 of 1957 to this Court,which was dismissed with costs by Gosain, J., on 25th May, 1959, vide his judgment under appeal. The decision of the District Judge was affirmed on all the points.

11. Assailing the finding of the learned Single Judge that the cognizance of the suit by the Civil Courts was not barred, the learned counsel for the appellant relies upon the provisions of Section 46 of the Administration of Evacuee Property Act as well as on Section 9 read with Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954. As the judgment of the learned Single Judge states, the objection based upon Section 46 of the Administration of Evacuee Property Act was not pressed before him, and rightly so.

This point was previously raised by the parties in Regular Second Appeal No. 1125 of 1954 arising out of the same dispute, but the contention now put forward on the basis of Section 46 of the Administration of Evacuee Property Act was rejected by Bishan Narain, J., in the following words:-

'The case of the respondents before me is that Section 46(c) and Section 46(d) apply to the present case and, therefore, the Civil Court has no jurisdiction to adjudicate upon this disputed title. In my opinion, there is no force in this contention. The plaintiff is not questioning the legality of any action taken under the Evacuee Act. She is not claiming that the land was not properly allotted to the defendants. All that she requires is that in the lands allotted by the Custodian to the defendants in lieu of the properties of Ganesh Das she should be declared to have a share. This prayer does not, in any way, involve the legality of any order passed by the Custodian. Section 46(d) also has no application to this case. It has been repeatedly held by this Court that a Custodian has no power to adjudicate upon a disputed title. This view was first taken in M. B. Namazi v. Deputy Custodian of Evacuee Property, Madras, (1951) 2 Mad LJ 1 : (AIR 1951 Mad 930), and it was accepted by the Division Benches of this Court in two cases, Dayal Bakshi Ram, Firm v. Assistant Custodian of Evacuee Property, Amritsar, 54 Pun LR 318 : (AIR 1952 Punj 389) and Custodian General of Evacuee Property, New Delhi v. S. Harnam Singh, 1956-58 Pun LR 490 : (AIR 1957 Punj 58). It was not suggested before me that the present suit which is competent under Section 9 of the Civil Procedure Code is barred by any other section of the Evacuee Act.'

No attempt has been made before us to assail the correctness of the view taken by the learned Judge. In fact, this decision is binding upon the parties as it was never assailed by any one of them by way of Letters Patent appeal.

12. Basing himself upon Section 9 of the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954, the appellant's learned counsel argued that under Section 9 of this Act a dispute relating to payment or apportionment of compensation payable to a displaced person or his successors-in-interest could only be adjudicated upon by a settlement officer, or a Settlement Commissioner, depending upon the value of the verified claim, and Civil Courts were Precluded from going into that matter, except when the Settlement Officer orthe Settlement Commissioner deemed it fit to refer the dispute to a District Judge nominated for the purpose by the State Government under Act 44 of 1954. After giving our earnest consideration to the relevant provisions, we have no hesitation in rejecting this Contention and endorsing the view taken by the learned Single Judge.

13. Section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the Act, imparts finality (except where otherwise expressly provided) to any order made by any officer or authority under the Act. Section 36 debars the Civil Court from entertaining any suit or proceeding 'in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine.'

In view of these provisions, if an order passed under the Act is being challenged by the plaintiff-respondent in the suit out of which this appeal has arisen, or the dispute raised by her is covered by the provisions of Section 9 of the Act, the Civil Courts would not be entitled to adjudicate upon her claim. In the present case, however, no order of any authority passed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, is being challenged.

As has been aptly observed by Bishan Narain, J., while disposing of R. S. A. 1125 of 1954 (Punj), 'all that she (plaintiff Shrimati Indar Devi) requires is that in the lands allotted by the Custodian to the defendants in lieu of the properties of Ganesh Das, she should be declared to have a share.' Thus what remains to be determined is whether her claim falls under the provisions of Section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954.

14. Section 9 of this Act reads as follows:-'Where there is any dispute as to the person or persons who are entitled to the compensation (including any dispute as to who are the successors-in-interest of any deceased claimant to compensation) or as to the apportionment of compensation among persons entitled thereto, such dispute shall, after such enquiry as may be prescribed, be decided.

(a) where the value of the verified claim does not exceed twenty thousand rupees, by the Settlement Officer;

(b) where the value of the verified claim exceeds twenty thousand rupees, by the Settlement Commissioner: Provided that the Settlement Officer or the Settlement Commissioner, as the case may be may refer any such dispute to the District Judge nominated in this behalf by the State Government whose decision thereon shall be final.'

15. On a plain reading of this provision of law, it becomes evident that it is only a dispute relating to the payment of apportionment of compensation payable in respect of a verified claim of the nature indicated in the Section that the Settlement Officers, or Settlement Commissioners, have been empowered to decide and not every type of dispute arising out of a claim preferred by a displaced person or among his successors. The expression 'verified claim' used in Section 9 of the Act is definedin Section 2(e) of the same Act, the relevant portion of which reads as follows:-

' 'Verified claim' means any claim registered under the Displaced Persons (Claims) Act, 1950 (XLIV of 1950) in respect of which a final order has been passed under that Act or under the Displaced Persons (Claims) Supplementary Act, 1954 (XII of 1954), and includes any claim registeredon or before the 31st day of May, 1953, under the East Punjab Refugees (Registration of Claims) Act, 1948, (East Punjab Act XII of 1948) or under the Patiala Refugees (Registration of Land) (Claims) Ordinance, 2004 (Order 10 of 2004 Bk) and verified by any authority appointed for the purpose by the Government of Punjab, the Government of Patiala and East Punjab States Union, as the case may be, which has not been satisfied wholly or partially by the allotment of any evacuee-land under the relevant notification specified in Section 10 of this Act, but does not include' ........'

16. From the underlined (here into ' ') portion of this definition it will be apparent that a claim which has been satisfied wholly or partially by the allotment of any evacuee land under the relevant notificationsspecified in Section 10 of the Act would not be included in the definition of a 'verified claim'. Among the notifications referred to in Section 10 are 'the notifications of the Government of Punjab in the Department of Rehabilitation No. 4891-S or 4892-S, dated 8th July, 1949.'

It is an admitted fact in the present case that agricultural land in two villages had been allotted to the defendants, and since then Sanads in respect of these lands have also been issued to the defendants by the Government. Some of them are Exhibits P-5, P-6, P-7, D-A and D-B. It is thus evident that the dispute between the parties in the Present case does not relate to a 'verified claim' as defined in Section 2(e) of the Act and, Consequently, it is not the one which can be decided by a Settlement Officer or a Settlement Commissioner under the provisions of Section 9 of the Displaced Persons (Compensation and Rehabilitation) Act.

17. The view of the learned Single Judge that Section 9 does not apply to the disputes relating to agricultural land allotted to a claimant as it does not fall under the Provisions of Section 9 of the Act and it was not excepted from the jurisdiction of the Civil Courts, finds support also from a recent decision of the Letters Patent Bench in Narain Singh v. The Deputy Secretary, Rehabilitation, L. P. A. 277 of 1958, decided on 23rd September, 1959, (Punj), where in Bhandari, C. J., with whom my learned brother, Falshaw, J., concurred, observed as follows:-

'The help of Section 9 can be invoked only in cases in which a dispute arises in regard to verified claims and not in cases in which a dispute arises in regard to agricultural land. The dispute in the present case bad not arisen in regard to a verified claim, for the widow's claim had been fully satisfied by the allotment of evacuee property. The dispute related solely to agricultural land which was allotted to the widow of the deceased on quasi-permanent basis under Punjab Government Notification of the 8th of July, 1949.'

A similar view was taken by another Division Bench of this Court in Smt. Wiran Bai v. Jaisa Ram, R. S. A. No. 150-p of 1954, decided on 12th November, 1959 (Punj).

18. For all these reasons, the decision of the learned Single Judge on the question of Jurisdiction must be upheld.

19. The contention that the plaintiff's suit was barred by time is also without any force. The plaintiff's suit relates to her rights in the land that had been allotted to the defendants and not to the property which has been left in Pakistan. Her cause of action arose on the allotment of the land to the defendants. As observed by their Lorships of the Judicial Committee in Mst. Bolo v. Mst. Koklan, AIR 1930 PC 270, there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement.

If the land in dispute had not been allotted to the defendants, the plaintiff could have no claim against them. It is only when they got the land in lieu of the property left in Pakistan which, according to the plaintiff, included the property that had been gifted by Ganesh Das to her son Jagdish Chandar, that the plaintiff's right to claim her share arose. The learned counsel for the appellant concedes that Article 120 of the Limitation Act applies. Thus, the plaintiff's suit was amply within time.

20. It was then urged that the Courts below were wrong in holding that the area claimed by the appellant had been allotted in lieu of the property that had been gifted by Ganesh Das to her son Jagdish Chandar and, in any case, the decree is in excess of the share claimed by the plaintiff. These are Pure findings of fact which have been affirmed by the learned Single Judge, and they cannot be reopened in the present appeal.

21. Lastly, the learned counsel for the appellant urged that a suit for declaration was not competent as the rights which vested in the defendants as allottees of the land in dispute were not 'property', as held in Amar Singh v. Custodian of Evacuee Property, (S) AIR 1957 SC 599. This authority has no applicability to the facts of the Present case, as it was conceded before the learned Single Judge that in respect of the land in dispute in the present case proprietary rights had been granted and Salads for the same had been issued to the defendants. Thus, they are not mere allottees of the land but owners, though subject to the result of this litigation, as noted in the Sanads.

22. For the reasons stated above, we see noforce in this appeal and dismiss the same with costs,affirming the judgment and decree of the learnedSingle Judge. A

Falshaw, J.

23. I agree.


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