1. These five Regular Second Appeals Nos. 496 to 500 of 1975 have arisen from the same judgment and decree dt. Nov. 16, 1974. of the Senior Subordinate Judge, Hissar, exercising enhanced appellate powers. The appeals are therefore being disposed of together.
2. Jagjit Singh gifted his land in 1953-54 to his wife and two sons: one of whom is the plaintiff-appellant Rajinder Singh. The appellant's share in the gift was 47 Kanals 19 Marlas. The land gifted by Jagjit Singh was in occupation of the tenants. Some of them who are defendants-respondents in these appeals filed applications under Section 18 of the Punjab Security of Land Tenures Act. 1953 (hereafter referred to as 'the Act') on June 9, 1960. for purchase of lands occupied by them. These applications were filed against all the donees. The appellant was a minor at that time. The Assistant Collector allowed the purchase of lands to the tenants vide his order dt. June 15, 1960, on the basis of a compromise between the parties. On attaining majority, the appellant brought the instant five suits on Feb. 9, 1966, against five sets of tenants assailing the validity of the order of the Assistant Collector. He claimed declaration that the impugned compromise order is illegal and is ineffective against his ownership rights. As a consequential relief he claimed possession of the land in dispute gifted to him by his father. The learned trial court upheld thc order of the Assistant Collector and further found that the appellant's suits were barred by time. On these findings all the five suits were dismissed. The appellant preferred appeals against judgments and the decrees of the trial Court which were consolidated. The lower appellate Court affirming the findings of the trial court dismissed the appeals.
3. The learned counsel for the appellant has raised three points in these appeals. Firstly, that the plaintiff-appellant is a small landowner, therefore, his land could not be purchased by tenants under Section 18 of the Act. Secondly, that appellant's mother was incompetent to effect compromise on his behalf with the tenants. Thirdly, that the appellant's suits were filed well within time.
4. In order to appreciate the first point. it is necessary to visualise the requirements of Section 18 of the Act. The relevant portion of this section is as follows:--
'18. (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small landowner-
(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or
(ii) * * (iii) * *
shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner. in the case of a tenant falling within clause (i) ** ** ** '
It is. thus. clear that in order to exercise the right of purchase under this section a tenant has to establish that he is in occupation of the land for at least six years under a landowner. who is not a small landowner, and the land is not included in the reserved area of the landowner.
5. In the instant case the respondents-tenants were admittedly in occupation of land for more than six years when they applied for purchase thereof under Section 18. As a matter of fact they were tenants of the donor himself before he gifted the land. But it is equally proved that the appellant is a small landowner. The term 'small landowner' is defined in Section 2(2) of the Act, meaning a landowner whose entire land in the State of Punjab does not exceed the 'permissible area.' According to S. 2(3) of the Act 'permissible area' is thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres. such sixty acres. It is uncontroverted that the appellant's holding consists of 47 Kanals 19 Marlas only which is much less than the permissible sixty acres. Thus, he is plainly a small landowner and there is no dispute in this respect. The Courts below have taken the view that under Section 6 of the Act. which is reproduced below. it is the area of the land held by the donor which was relevant to ascertain the tenants' rights to purchase under Section 18 and not that of the appellant. It was held that the donor was admittedly big landowner, therefore, by legal fiction it has to be presumed that the appellant was himself a big land-owner.
'Section 6. No transfer of land, except a bona fide sale or mortgage with possession or a transfer resulting from inheritance, made after the l5th Aug. 1947 and before the 2nd Feb. 1955, shall affect the rights of the tenant on such land under this Act.'
6. No doubt at present under this section the gift in appellant's favour has to be ignored as it was effected between l5th Aug. 1947 and 2nd Feb. 1955 and this entitles the respondents-tenants to exercise their right of purchase under Section 18 against the donor. But it must be remembered that when this right was exercised by the tenants in 1960, this section as it stands. was not existing in the statute book. In its present form Section 6 was substituted in 1962 under Section 3 of the Punjab Security of Land Tenures (Amendment and Validation) Act, 1962. Section 6 as it originally stood was in the following terms:--
'Section 6. For the purposes of determining under this Act the area owned by a landowner, all transfers of land except bona fide sales or mortgages with possession or transfers resulting from inheritance. made after the l5th Aug. 1947. and before the commencement of this Act, shall be ignored.'
7. The interpretation of Secs. 6 and 16 of the Act while determining the rights of tenants to purchase under Section 18 was considered by a Division Bench of this Court in Ganpat v. Jagmal. 1963 Pun LJ 70. To understand the ratio of the judgment Section 16 is reproduced below:--
'Section 16. Save in the case of the land required by the State Government under any law for the time being in force. or by an heir by inheritance no transfer or other disposition of land effected after the 1st Feb. 1955, shall affect the rights of the tenant thereon under this Act.'
8. It was held by the Division Bench that prior to the substitution of Section 6 by the amending Act of 1962 the transfers made by landowners between l5th Aug. 1947 and 2nd Feb. 1955 passed title to the transferees and such transfers could not be ignored by the tenants. It is only Section 16 which put an embargo on all transfers of land after 2-2-1955 excepting the acquisition of land by the State Government or by an heir by inheritance so far as the rights of the tenants under the Act are concerned. The transfers which were prohibited under Section 6 were to be ignored only for the purpose of limiting the total area owned by the land owner for determining surplus area and its utilization under Section 10-A of the Act. For that purpose certain transfers were recognised and others were ignored. On that determination depended the status of the landlord. Either he fell into the category of a 'landowner' or a 'small landowner'. It was made unambiguous that there is no provision in the Act to the effect that after the transfer effected between 15-8-1947 and 2-2-1955 the tenant is to be deemed to be still tenant of the landowner making the transfer. Only his eviction was barred for ten years under Section 7 of the Act. The ratio of this judgment was approved by a later Full Bench of this Court in Chandi Ram v. State of Punjab, 1974 Pun LJ 251: (AIR 1974 Punj & Har 243).
9. Applying these principles there is no escape from the conclusion that the impugned order of the Assistant Collector violated Section 18. The gift in favour of the appellant was made prior to February 2. 1955 and it, therefore; passed title to him. Consequentially after this transfer the respondents became his tenants on the land in dispute. Since the applications for purchase under Section 18 were filed by the tenants in 1960 i. e. before the substitution of Section 6 in the present form. they had to exercise their right of purchase against the appellant and not against the donor. The status of the appellant was relevant at that time in order to ascertain whether he fell into the category of a 'landowner' or a 'small landowner.' Since the appellant is a small landowner his land manifestly could not be allowed to be purchased by he tenants under Section 18. Thus, the impugned order of the Assistant Collector is in violation of Section 18.
10. The second point raised by the appellant is also not without merit. It is not disputed that when the impugned order was passed by the Assistant Collector the appellant was a minor. Under, such circumstances O. 32 R. 3 of the Civil P. C. cast a duty on the Assistant Collector to appoint his guardian to protect his interest in proceedings under Section 18. O. 32. Rule 3 provides that where the defendant is a minor, the Court on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. The intention of law is clear that it is the sacred function of the Court, be it civil or revenue, or a tribunal. to safeguard the interest of a minor in any pending proceedings. In the instant case the impugned order itself shows that no guardian of the appellant was appointed by the Assistant Collector. On the contrary the appellant was not even described as a minor. The appellant's mother was, no doubt, a party to those proceedings but she was never appointed as her minor son's guardian. It is, therefore, plain that the impugned order having violated O. 32. R. 3. of the Civil P. C. is a nullity and ineffective so far as the appellant is concerned.
11. The impugned order of the Assistant Collector was undoubtedly based on a compromise. But merely on this account it did not become unassailable. In the first place the appellant was a minor at that time and was, therefore, incapable of` entering into a compromise. Secondly, any order passed on the basis of a compromise which violated Section 18 is illegal and ineffective. I am fortified in this view by a judgment of the Supreme Court in State of Punjab v. Amar Singh 1974 Pun LJ 74: (AIR 1974 SC 994). The Supreme Court observed that:--
'Where a compromise goes against a public policy, prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts. a razi cannot operate to defeat the requirement so specified or absolve the Court from the duty. The resultant order will be ineffective.'
It was explained that:
'After all. by consent or agreement parties cannot achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation.'
These observations were made in a case under Section 18 of the Act and it was held that:
'It may be right to conclude that any authority like the Collector in that case, enjoined to apply Section 10-A.(b) and (c), may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. He can and must lift the veil and look the agreement of the parties in the face.'
It is thus manifest that the impugned order of the Assistant Collector is a nullity as against the appellant since it not only violated Section 18 of the Act but also O. 32 R. 3. C.P.C.
12. It needs to be clarified that after substitution of Section 6 by the amending Act of 1962 all transfers between l5th Aug. 1947 and 2nd Feb. 1955 have to be ignored excepting bona fide sales or mortgages with possession or transfers resulting from inheritance. If these transfers are ignored then the tenants will be tenants of transferor and would be entitled to exercise the right of purchase under Section 18 of the Act against him if the ingredients of the section are satisfied, namely, that the transferor was a big landowner and the land held by the tenants was hot included in his reserved area. The effect of this substituted section was considered in Ganpat's case (1963 Pun LJ 70) (supra) and it was held as under:--
'This brings me to the consideration of the amendment of the Act by the Punjab Security of Land Tenures (Amendment and Validation) Act (14 of 1962). This amending Act received the assent of the President on the 4th July, 1962. and was published in the official gazette on the 10th July, 1962. Sections 2 (a), 4, 5, 7 and 10 of the amending Act are to be deemed to have come into force on l5th Apr. 1953. while Sections 2(b) and 6 shall be deemed to have come into force on 30th July, 1958, and the remaining provisions of this Act came into force at once. Section 3 of the amending Act substituted for Section 6 the following Section 6:--
'6. No transfer of land, except a bona fide sale or mortgage with possession or a transfer resulting from inheritance, made after the l5th Aug. 1947, and before the 2nd Feb. 1955. shall affect the rights of the tenant on such land under this Act.' Therefore, if a tenant is still a tenant of the land at the date when he wants to exercise his right under Section 18 by reason of this substituted section all transfers between l5th Aug. 1947, and the 2nd Feb. 1955, have to be ignored excepting bona fide sales or mortgages with possession or transfers resulting from inheritance. It is not disputed that if these transfers are ignored then the tenants will be the tenants of the 'landowners' and would be entitled to exercise the right of purchase under Section 18. It is also of significance that by Section 10 of the amending Act Section 10-A and Section 2 (5-a) of the Act have to be deemed to have always been inserted in the principal Act on the l5th Apr. 1953. Therefore, when the principal Act was passed. Section 10-A and Clause (5-a) of Section 2 have to be treated as its integral parts, and if these two provisions are treated on the statute book as from 15th Apr. 1953 along with the substituted Section 6. the only conclusion possible is that the tenants in the present petitions have the right to acquire land by purchase under Section 18 of the Act irrespective of the transfers by gift.'
13. There is, thus, no manner of doubt that the tenants-respondents after the substitution of Section 6 in 1962 became entitled to exercise their right of purchase under Section 18 by ignoring transfers made by Jagjit Singh between l5th Aug. 1947 and 2nd Feb. 1955. In other words, if they want to exercise their right under S. 18 by reason of this substituted section they can ignore the gift in favour of the appellant. They are still on the land and, taking advantage of the substituted S. 6. it is open to them to apply again to the appropriate authority for purchase of land from donor provided they satisfy the ingredients of S. 18.
14. This brings me to the point of limitation. The Courts below have held that the appellant's suits are barred by time. This finding in my opinion is erroneous. The order of the Assistant Collector under S. 18 is held to be void. Such an order has no existence in law and need not be set aside. The limitation in the present case, nevertheless started running when the impugned void order of purchase was passed by the Assistant Collector on June 15, 1960. To this order, which can be simply ignored, provisions of Art. 100 of the Limitation Act would not apply as held by this Court in Budha Ram v. Behari Lal, (1969) 71 Punj LR 83. On the basis of the non est order the tenants-respondents are claiming occupation of the land as owners. To wash away the effect of this order the appellant has claimed relief of possession in exercise of his rights of ownership. No doubt, the land being in possession of the tenants a decree for actual possession cannot be passed against them and only a decree for symbolical possession will have to be passed in appellant's favour. In the absence of applicability of Art. 100 the appellant's suits are plainly governed by Art. 67 of the Schedule to the New Limitation Act. The suits having been filed within 12 years from the date of the impugned order are, therefore, evidently within time. I am supported in this view by a Division Bench judgment of this Court in Kul Bhushan v. Faquira, (1976) 78 Pun LR 537: (AIR 1976 Punj & Har 341). The proposition laid down in that judgment is that it is not necessary for the plaintiff to have a non est order set aside. Art. 100 applies only to such cases where there is no question of the ultra vires of the order or of the want of jurisdiction of the person making the order but where the order is sought to be set aside on some other ground. In the absence of applicability of Art. 100 e suit for possession is governed by Art. 67 of the Schedule to the new Act. In this view of the matter the appellant's suits are held to be within time.
15. For the aforementioned reasons, these five appeals are allowed. the judgment and decree of the lower appellate Court are set aside and, ignoring the void order passed by the Assistant Collector dated June 15. 1960. a decree of symbalical possession in each of the five cases is passed in appellant's favour against the tenants. There will be no order as to costs.
16. Appeals allowed.