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Shankar Singh and ors. Vs. Mangal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1159 of 1961
Judge
Reported inAIR1973P& H307
ActsPunjab Security of Land Tenures Act, 1953; Code of Civil Procedure (CPC), 1908 - Sections 144; Punjab Tenancy Act - Sections 50
AppellantShankar Singh and ors.
RespondentMangal Singh and ors.
Cases ReferredRodger v. Comptoir
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 5. i have heard the contentions of the learned counsel for the parties and am of the view that the contention of the learned counsel for the appellants does not hold good. the reading of..........which have led to this litigation are that mst. swaran lata defendant no. 3 was the owner of the property in dispute and the defendants nos. 1 and 2 were the tenants under her. defendant no. 3 filed proceedings for recovery of rent and the eviction of the defendants 1 and 2 under the provisions of the punjab security of land tenures act, 1953 (hereinafter referred to as the 'tenures act') from the land in dispute and obtained an ex parte order of ejectment against them. they put in an application for setting aside the ex parte order before the assistant collector, who passed the order of ejectment, but he rejected the said application. the defendants nos. 1 and 2 filed an appeal against the said order before the collector which was accepted by him and he remanded the case for trying.....
Judgment:

1. This appeal has been filed against the judgment and decree of the District Judge, Jullundur, dated July 11, 1961 by which he reversed the judgment and decree of the trial Court dismissing the suit of the plaintiffs.

2. The facts which have led to this litigation are that Mst. Swaran Lata defendant No. 3 was the owner of the property in dispute and the defendants Nos. 1 and 2 were the tenants under her. Defendant No. 3 filed proceedings for recovery of rent and the eviction of the defendants 1 and 2 under the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Tenures Act') from the land in dispute and obtained an ex parte order of ejectment against them. They put in an application for setting aside the ex parte order before the Assistant Collector, who passed the order of ejectment, but he rejected the said application. The defendants Nos. 1 and 2 filed an appeal against the said order before the Collector which was accepted by him and he remanded the case for trying the same on merits. Before the hearing of the appeal defendant No. 3 had taken possession of the land in dispute from defendants Nos. 1 and 2 and therefore, it was also ordered by the Collector that they should be restored the possession of the property in dispute. Defendants Nos. 1 and 2 put in an application for restoration of possession before the Assistant Collector, but the same was dismissed by him. They filed an appeal against that order to the Collector, who accepted it and directed that the possession should be delivered to them. After the passing of the said order Swarn Lata sold the property in dispute to the plaintiffs and defendant No. 4 and the plaintiffs instituted the present suit for declaration that they and the defendant No. 4 were the owners of the land in dispute and the order of the Collector directing the restoration of possession to defendants Nos. 1 and 2 was illegal, without jurisdiction and they had no right to take possession in pursuance of that order. They also prayed that defendants Nos. 1 and 2 be injuncted from taking possession of the land in dispute in pursuance of the illegal order of the Collector. The suit was resisted by the defendants Nos. 1 and 2, who denied the allegations of the plaintiffs submitted that the order passed by the Collector was legal and they were entitled to the possession of the property on the basis of that order. They also stated that the Civil Court had no jurisdiction to try this suit. On the pleadings of the parties following issues were framed:--

1. Are the defendants occupancy tenant or tenants at will of the land in dispute?

2. Had the Civil Court no jurisdiction to try the suit?

3. Are the plaintiffs and defendant No. 4 owners of the land in dispute?

4. Relief.

3. The trial Court decided issues Nos. 1 and 2 against the defendants and issue No. 3 in favour of the plaintiffs and decreed their suit. On appeal, the district Judge upheld the findings of the trial Court on issues Nos. 1 and 3, but reversed its finding on issue No. 2 and accepted the appeal and dismissed the suit. It may be mentioned that during the pendency of the appeal, Ram Chand died and respondents 2 to 8, his widow Tejo and children were impleaded as parties. The plaintiffs having felt aggrieved against the said judgment and decree of the first Appellate Court, have come up in appeal to this Court.

4. The only submission which was made by the learned counsel for the appellants was that the order of the Collector for restoration of the possession passed under the Act was without jurisdiction as according to him he had no power to order restoration of the possession to Mangal Singh and Ram Chander, who had already been ejected. He further admitted that Section 144 of the Code of Civil Procedure (hereinafter referred to as the code) did not apply to the proceedings before the Revenue Officers under the Act and they could only get the possession back by institution of the suit under Section 50 of the Punjab Tenancy Act. On the other hand, the learned counsel for the respondents submitted that the Courts have got inherent powers to restore the possession of the properties in case the order in pursuance of which the tenants had been ejected, is set aside. He submitted that even if there was no provision in the Punjab Security of Land Tenures Act, they could pass an order to remedy the injustice which the tenants would have otherwise suffered.

5. I have heard the contentions of the learned counsel for the parties and am of the view that the contention of the learned counsel for the appellants does not hold good. The ex parte order of ejectment passed by the Assistant Collector had been set aside by the Collector vide his order dated November 6, 1957 (Exhibit D.12). In that order he observed that the tenants be put in possession on the land in dispute from the next year. I do not find any fault with the said order. Swarn Lata had been put in possession of the property in dispute by virtue of the order of the Assistant Collector and she could not make a grievance regarding restoration of possession if that order of the Assistant Collector had been set aside in appeal. She could not resist the order of the Collector for restoration of the possession as the order on the basis of which she was put in possession was no longer in existence. It cannot be aid that the tenants had got only a remedy by institution of suit for getting the possession under Section 50 of the Punjab Tenancy Act, which section has been enacted for a different purposes. The reading of the said section clearly shows that its provisions would not be applicable in case of the ejectment of tenants under the lawful orders of an Assistant Collector under the Tenures Act and which subsequently have been set aside. In my view the provisions of Section 50 of the Punjab Tenancy Act are not applicable as submitted by the learned counsel for the appellants.

6. One of the principles that has been recognised by the Courts is that the acts of Courts should not do injury to any of the suitors. In case no remedy is provided in the Act regarding certain acts of the Court and the Court feels that injustice has been done to a suitor, it can remedy that injustice under its inherent powers. This principle has been judicially noticed in Jai Berham v. Kedar Nath Marwari AIR 1922 PC 269, wherein it has been observed as follows:--

'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the Highest Court which finally disposes of the case. It would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction purchaser to the moneys which have been applied for his benefit.'

7. This principle has also been noticed by the Supreme Court in Mrs. V. G. Peterson v. Forbes AIR 1963 SC 692, wherein the question was whether the rightful owner of the property would have it or the Government which had come into possession of the property without being a claimant to it because of an erroneous order of the Court should retain it, if it was found that the order was wrong. It was held that the question must be decided in favour of the rightful owners of the property. Their Lordships placed their reliance on the observations of Cairns, L. C. in Rodger v. Comptoir D'Escompte de Paris (1871) 3 PC 465 which are as follows:--

'One of the first and highest duties of all courts is to take care that the act of the Court does no injury to any of the suitors .............'

The aforesaid observations aptly apply in the present case. On setting aside the ex parte order of ejectment, the landlord did not remain entitled to retain the property of the tenants. She was bound to return the benefit taken by her under the orders of the court when those orders were set aside. Even if there is no provision in the Act, the Officers under the Tenures, Act have inherent jurisdiction to put the tenants in possession of the lands taken from them under the ex parte orders. The argument that they should be left to seek their remedy by way of separate suit, does not hold good. The above principle also holds good even if at the time of setting aside the ex parte order, no order has been passed for restoration of possession. If a person against whom an ex parte order of ejectment has been passed and who on that basis has been ejected, he, after that order has been set aside, can make an application for putting him in possession of the property from which he was dispossessed in pursuance of that order.

8. In the present case, the Collector while setting aside the ex parte order also observed that the tenants be put in possession of the lands from which they had been dispossessed. The order of the Collector is valid and cannot be challenged. On the basis of such an order even possession can be obtained under the provisions of the Tenures Act. Rules have been framed under that Act, which are known as the Punjab Security of Land Tenures Rules 1953 (which are hereinafter referred to as the Rules), Rule 11 of the Rules prescribed procedure which is in the following terms:--

'The procedure of Revenue Officers in matters under the Punjab Security of Land Tenures Act 1953, and these rules for which a procedure is not prescribed thereby, shall be regulated as far as may be, by the procedure prescribed for Revenue Officers, by the provisions of the Punjab Tenancy Act, 1887, and the rules thereunder.'

The aforesaid rules says that wherever there is no rule prescribing the procedure of the Revenue Officers under the Tenures Act., it shall be regulated as far as may be by the procedure prescribed for the Revenue Officers by the provisions of the Punjab Tenancy Act, 1887 and the rule thereunder. The rules have also been framed under the Punjab Tenancy Act, 1887, which are known as the Punjab Tenancy Rules, 1909, Rule 10 provides for execution of order of ejectment etc. The said rule is as follows:--

'Orders of ejectment from, and delivery of possession of immovable property shall be enforced in the manner provided in the Code of Civil Procedure for the time being in force in respect of the execution of a decree whereby a Civil Court had adjudged ejectment from, or delivery, of possession of such property'. On reading the aforesaid rule, it will be clear that orders of delivery of possession of immovable property shall be enforced in the manner provided shall be enforced in the manner provided in the Code of Civil Procedure for the time being in force in respect of the execution of the decree. whereby a Civil Court has adjudged ejectment from or delivery of possession of such property. The order of the Collector for delivery of possession to the tenants can be executed under rule 10 of the Punjab Tenancy Rules 1909 read with rule 11 of the Rules and the Assistant Collector shall have the same powers which the Civil Court has for execution of decree of ejectment from or delivery of possession of that property. The said rules are very clear and are not subject to any other interpretation than the one. I have taken. If the Revenue Officer passes an order for delivering the possession in the circumstances stated above, those officers have got powers to deliver possession under the said rules.

9. In view of the above discussion, I am of the view that the orders of the Revenue Officers which have been challenged as being illegal and ultra vires are valid and do not suffer from any defect. Section 25 of the Security Act provides that the validity of any proceeding or order taken or made in that Act shall not be called in question in any Court or before any other authority. The orders of the revenue officers under the Security Act, have been held by me to me legal and valid. Those orders, therefore, cannot be challenged in the Civil Court and the jurisdiction of the Civil Court is barred under Section 25. I, therefore, do not find any force in the appeal which is dismissed with costs.

10. Appeal dismissed.


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