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Hazarilal Vs. Nagar Parishad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 221 of 1967
Judge
Reported inAIR1976Raj91; 1975()WLN563
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 12, 14(1) and 20(1A); Specific Relief Act, 1963 - Sections 37; Evidence Act, 1872 - Sections 13, 43 and 114; Evacuee Property Act, 1950; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 94 - Order 41, Rule 27
AppellantHazarilal
RespondentNagar Parishad
Appellant Advocate Airunkumar Bhandari and; Abhay Kumar Bhandari, Advs. for;
Respondent Advocate S.K. Keshote, Adv.
DispositionAppeal allowed
Cases ReferredGossain Dass Kundu v. M. Agrtan Sardar
Excerpt:
.....1954 - sections 12 & 14--on publication of notice property goes into compensation pool from evacuee pool.;on the publication of a notification under section 12, the evacuee property which was the property of the evacuee pool under the administration of evacuee property act, 1950, goes out of ,he evacuee pool and becomes a part of the compensation pool and vests in the central government free of all encumbrances. it further follows from sub-clauses (c) and (d) of sub-section (1) of section 14 of the act that the property in the compensation pool may not only consist of the evacuee property acquired under section lit of the act, but it may also consist of other properties acquired from other sources detailed in sub-clauses (c) and (d) of sub-section (1) of section 14.;(b) displaced..........was further held that 'where upon a sale under a mortgage-decree, the purchaser has been given a sale certificate which plainly includes certain property, it is not open to the court in a subsequent suit by mortgagor's representative to hold by reference to the mortgage-deed that the property in question was not sold under the decree.' the facts of that case are undoubtedly quite different from the facts of the present case. in the case before the judicial committee, what happened was that the mortgage included certain pannai lands which belonged to the mortgagor and which were in his enjoyment. but at the date of the mortgage, some of the pannai lands were not in the enjoyment of the mortgagor. when, however, sale proceedings were taken in execution, the person who was in possession.....
Judgment:

S.N. Modi, J.

1. This is a second appeal by the plaintiff in a suit for perpetual injunction.

2. The relevant facts giving rise to this appeal may briefly be stated as under :

The plaintiff after having given the highest bid of Rs. 11,800 on 9-1-1955 at a sale by public auction held in pursuance of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. hereinafter called as the Act, and the rules framed thereunder in respect of the property bearing Nos. 293, 293/1 situate in ward No. 8 at Alwar, obtained Certificate of Sale Ex. 1 signed by the Assistant Settlement Commissioner on 23-12-1958. Along with the certificate of sale, a plan of the property sold was also handed over to the plaintiff which is Ex. 2. The certificate of sale Ex. 1 mentions boundaries of the property sold, its total area, namely, 279 sq. yards and its plot Nos. 293 and 293/1. The plan Ex. 2 shows the land sold, its boundaries and plot Nos. 293 and 293/1. The dispute between the parties relates to a portion out of this property. The disputed portion has been shown in the plan attached to the plaint in red lines bearing plot No. 293/1. The plaintiff constructed one tin-shed on this disputed land and got its floor plastered with cement. The defendant-Nagar Parishad, Alwar, threatened the plaintiff to demolish the tin-shed and remove the cemented floor. The plaintiff then filed a suit on 2-11-1961 out of which this appeal has arisen, for grant of perpetual injunction restraining the defendant from interfering with the plaintiff's possession and use of the disputed land. The defendant admitted that the plaintiff purchased the property bearing No. 293 but pleaded his own title on the property bearing No. 293/1. The defendant asserted that the plaintiff had forcibly encroached upon the land bearing No. 293/1 and thereby obstructed the traffic. On the pleadings of the parties, the trial court framed several issues, material issue being :-- 'Whether the disputed land was owned and possessed by the plaintiff?'

The trial Court held that the plaintiff was the owner in possession of the disputed land and decreed the suit. On appeal by the defendant, the learned Senior Civil Judge, Alwar, by his judgment dated 24-3-1967 reversed the finding of the trial court and dismissed the suit. Hence this second appeal by the plaintiff.

3. Dealing with the main issue, the learned Senior Civil Judge held that the Certificate of Sale Ex. 1 was not correct and the disputed land bearing No. 293/1 had been erroneously included therein. He gave the following reasons for arriving at the above conclusion :--

1. From the statement of Shivlal, a clerk in the office of the Managing Officer, Alwar, and the survey report (which was not produced in court), it was established that the property sold to the plaintiff was plot No. 293 and not the disputed land bearing No. 293/1.

2. From the judgment of the Municipal Board dated 29-10-1960 (Ex. A/1) and the site-plan (Ex. A/2), it was established that the disputed land was shown in the site-plan Ex. A/2 as 'jamin sarkari'.

3. From the patta Ex. A/4, it appeared that Abidali had purchased the property from Mst. Namni and therein the disputed land was shown as 'jamin sarkari'.

4. The property register maintained by the Custodian showed that the disputed property did not belong to the evacuee Abidali. (It may be mentioned here that in this register the property belonging to Abidali was shown as bearing Nos. 293/1 and 293/2 and there was no mention of the property bearing No. 293 at all). In this connection, the learned Civil Judge further found that the open yard mentioned in the register referred to the yard situate in the main building and not the open land in question.

5. The site-plans Ex. X and Ex. Z produced before the Municipal Council by the plaintiff for the purpose of obtaining permission for construction did not show that the disputed land belonged to him. (Both these documents were admitted in evidence by the appellate court under Order 41. Rule 27, Civil P. C.).

6. Certificate of sale Ex. 1 was ambiguous and was not sufficient to prove title of the plaintiff.

7. The plaintiff failed to prove that the disputed land was owned by Abidali and was declared as evacuee property.

8. The area of 279 sq. yards mentioned in the Certificate of Sale Ex. 1 was wrongly entered by inadvertence.

4. I have heard learned counsel for the parties and gone through the record of the case. The learned counsel for the defendant-respondent candidly conceded that some of the grounds on which the learned Senior Civil Judge based his judgment were either wrong or based on misreading or erroneous interpretation of the documents. I may mention at the outset that the learned Senior Civil Judge approached the case from entirely a wrong angle. The Certificate of Sale Ex. 1 on which the plaintiff based his suit shows that the property put to public auction was knocked down in favour of the plaintiff OB 9-1-1955 under the provisions of the Act and the Rules framed thereunder and the Certificate of Sale was issued to him by the Assistant Settlement Commissioner, Rajasthan. on 23-12-1958. Under the Act, there is no provision other than Section 20(1-A) according to which transfer of property by public auction can be made. Section 20(1-A) lays down that the managing officer or the managing corporation may transfer any property out of the compensation pool by sale of such property to a displaced person or any association of displaced persons whether incorporated or not or to any other person whether the property is sold by public auction or otherwise. It is thus abundantly clear that the property in the present case which was put to auction under the provisions of the Act belonged to the compensation fool. Section 14 of the Act speaks as to how a compensation pool shall be constituted. This section reads as under:--

'Section 14. Compensation pool,--(1) For the purpose of payment of compensation and rehabilitation grants to displaced persons, there shall be constituted a compensation pool which shall consist of-

(a) all evacuee property acquired under Section 12, including the sale proceeds of any such property and all profits and income accruing from such property;

(b) such cash balances lying with the Custodian as may, by order of the Central Government, be transferred to the compensation pool;

(c) such contributions in any form whatsoever, as may be made to the compensation pool by the Central Government or any State Government;

(d) such other assets as may be prescribed.

2. The compensation pool shall vest inthe Central Government free from all en-cumbrances and shall be utilised in accordance with, the provisions of this Act and the rules made thereunder.' It will be useful to quote here Section 12 also. It reads as under:--

'Section 12. Power to acquire evacuee property for rehabilitation of displaced persons.-

1. If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose, connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the official gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.

2. On the publication of a notification under Sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.

3. It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notification referred to in Sub-section (1) in respect of-

(a) all evacuee property generally, or

(b) any class of evacuee property, or

(c) all evacuee property situated in a specified area; or

(d) any particular evacuee property.

4. All evacuee property acquired under this section shall form part of the compensation pool.'

5. It follows from the sections referred to above that on the publication of a notification under Section 12, the evacuee property which was the property of the evacuee pool under the Administration of Evacuee Property Act, 1950, goes out of the evacuee pool and becomes a part of the compensation pool and vests in the Central Government free of all encumbrances. It further follows from Sub-clauses (c) and (d) of Sub-section (1) of Section 14 of the Act that the property in the compensation pool may not only consist of the evacuee property acquired under Section 12 of the Act, but it may also consist of other properties acquired from other sources detailed in Sub-clauses (c) and (d) of Sub-section (1) of Section 14. In this view of the matter, the argument of the learned Senior Civil Judge that because the disputed and was not proved to be the evacuee property, it was not liable to be auctioned or purchased by the plaintiff, falls to the ground. The learned Senior Civil Judge, it appears, has completely ignored the provisions of the Act and the possibility of the disputed landhaving been included in the compensation pool from sources other than the source by acquisition of evacuee property. It may be emphasised here that once the property becomes part of the compensation pool, it can be put to auction under the provisions of the Act even without its being declared as an evacuee property.

6. The important question that, however, arises for decision of this appeal is whether the property in question was included in the compensation pool. It may be stated at the outset that there is no evidence to prove this fact. But from the fact that the property in question was put to auction under the provisions of the Act and a certificate of sale was issued as per the rules framed thereunder, it can safely be presumed that the property sold including the land in question must have been a part of the compensation pool. Such a presumption arises under Section 114(e) of the Evidence Act for, any act done by a public officer in his official capacity is taken as rightly done. In any case when the plaintiff produced the certificate of sale Ex. 1, the burden lay on the defendant to show that the property in question was not included in the compensation pool and was wrongly put to auction by the managing officer. As already stated above, the defendant did not care to produce any evidence to show that the property in question was not included in the compensation pool. In the absence of such proof, the documents Ex. A/2 and Ex. A/4 showing that the disputed land in the year 1935 was not the property of Abidali are of no consequence and they do not rebut the presumption arising under Section 114(e) of the Evidence Act.

7. Now coming to the statement of Shivlal P. W. 4, it may be mentioned that he has supported the plaintiff's version in his examination-in-chief. In cross-examination, he has stated that the register containing the list of evacuee property was maintained by the managing officer and in that register there exists no serial number 293 and the evacuee property belonging to Abidali has been shown at serial numbers 293/1 and 293/2. He does not say a word about the register containing the list of the property included in the compensation pool. His evidence, in the circumstances, is of no consequence as we are not concerned whether the property in question was or was not the evacuee property.

8. Another document on which reliance has been placed by the learned Senior Civil Judge is Ex. A/1 which is a judgment of the President, Municipal Council, dated 29-10-1960. The learned counsel for the defendant strongly relied upon the following portion of this judgment:--

(Matter in vernacular omitted) This judgment was pronounced by the President, Municipal Council, Alwar, in an appeal filed by one Sampatram against Hazarilal, the present plaintiff. It so appears that the plaintiff sought permission from the Municipal Council for making certain alterations and new constructions in his building purchased under Certificate of Sale Ex. 1. Sampatram, who is a neighbour, filed a ujardari that if the permission sought was accorded, it would result in encroachment of the sarkari land that is, the land in dispute. This objection was overruled by tie Building Committee of the Municipal Council, Alwar, vide its judgment dated 22-9-1959. Dissatisfied with the said judgment. Sampatram filed an appeal which was also dismissed vide the judgment dated 29-30-1960 Ex. A/1. The aforesaid passage quoted from the judgment Ex.. A/1 shows that the President, Municipal Council, Alwar observed that the disputed land was 'sarkari jamin'. The question arises whether in the circumstances this recital in the judgment can be acted uponand treated as evidence in the case. This judgment Ex. A/1 is relevant under Section 13 Section 43 of the Evidence Act as establishing the transaction, namely, that the permission sought by the plaintiff and accorded by the Building committee was upheld by thePresident, Municipal Council. The reasons upon which the judgment was founded are no part of the transaction and cannot be so regarded nor can any finding of fact arrived at in that judgment other than the transaction itself can be held relevant in the present case. The judgment Ex. A/1 in this view of the matter loses all its importance and is of no assistance to the defendant.

9. The teamed Senior Civil Judge has next relied upon the site plans Ex. X and Ex. Z. Both these documents were admitted in evidence by the learned Senior Civil Judge himself during the coarse of the hearing of the appeal under the provisions of Order 41, Rule 27, Civil P.C. According to the defendant, these documents are said to have been presented by the plaintiff Hazarilal before the Municipal Council along with an application seeking permission to make certainalterations and additions in the building purchased by him under the Certificate of Sale Ex. 1. The learned Senior Civil Judge has observed that in these site-plans produced by the plaintiff he did not mention the disputed land as belonging to him or that he had purchased the same. From the omission on the part of the plaintiff to mention the land in question as belonging to him, the learned Senior Civil Judge has drawn inference that the land in question did not form the partof the Certificate of sate Ex. I and it was never purchased by the plaintiff. Such an inference, to my mind, is far-fetched. Simply because in Ex. X and Ex. Z the plaintiff did not specifically mention that the disputed property belonged to him, it cannot be inferred that the plaintiff abandoned his right over that land or that it belonged to some one else. That apart, these documents were wrongly acted upon by the learned Senior Civil Judgebecause there is no proof that these documents were produced by the plaintiff before the Municipal Council or that they bore the signatures of the plaintiff. Besides that, it appears that the learned Civil Judge acted upon these documents after having admitted them in evidence under Order 41, Rule 27, Civil P. C. without giving an opportunity to the plaintiff to adduce evidence in rebuttal. Had such opportunity been given to the plaintiff, the latter would have explained the circumstances under which he produced Ex. X and Ex. Z and he would have also explained why he did not think proper to mention specifically in Ex. X and Ex. Z that the land in question belonged to him. In the circumstances, the learned Senior Civil Judge committed gross error in acting upon Ex. X and Ex. Z.

10. I now come to the question whether the Certificate of Sale Ex. 1 is in any way ambiguous. The learned counsel for the defendant was not able to point out any ambiguity in Ex. 1. It describes the land sold by well defined boundaries. It also mentions the area of the land sold and the plot numbers of the property. Besides that, there is plan Ex. 2 attached to the Certificate of Sale which clearly shows that the land in question was transferred to the plaintiff. The learned counsel for the defendant, however, urged on the basis of the entry appearing in Ex. A/3 that the land in question was not owned by Abidali and was not evacuee property. As already pointed out above, it was not necessary to prove that the disputed land was evacuee property. Property other than evacuee property could be sold under the Act provided it was included in the compensation pool. The learned Senior Civil Judge has also remarked that the Certificate of Sale Ex. 1 is not sufficient to prove title. In this connection, I would like to refer to a decision of the Judicial Committee in Ramabhadra Naidu v. Kadiriyasami Nakker, AIR 1922 PC 252. In that case, it was held that 'certificates of sale are documents of title which ought not to be lightly regarded or loosely construed.' It was further held that 'where upon a sale under a mortgage-decree, the purchaser has been given a sale certificate which plainly includes certain property, it is not open to the court in a subsequent suit by mortgagor's representative to hold by reference to the mortgage-deed that the property in question was not sold under the decree.' The facts of that case are undoubtedly quite different from the facts of the present case. In the case before the Judicial Committee, what happened was that the mortgage included certain pannai lands which belonged to the mortgagor and which were in his enjoyment. But at the date of the mortgage, some of the pannai lands were not in the enjoyment of the mortgagor. When, however, sale proceedings were taken in execution, the person who was in possession at the date ofthe mortgage of some of the pannai lands was dead and in the final decree as well as in the execution proceedings, all pannai lands belonging to the mortgagor and in his enjoyment were ordered to be sold. The mortgagor objected that some of the pannai lands were outside the mortgage and were not liable to be sold. This objection was disallowed and the pannai lands were sold and included in the sate certificates and possession thereof was delivered to the purchasers. In these circumstances, the Judicial Committee held that it was not possible to go back to the mortgage-deed to find out the title.

11. In the present case, the certificate of sale clearly described the property by boundaries and area. There is also a site-plan attached to it. There is thus no dispute as to the identity of the property sold. The certificate of sale Ex. 1 as well as the plan Ex. 2 clearly include the property in dispute. Where there is no doubt as to the identity of the property sold even if there is any mis-description, such mis-description has been treated as mere irregularity. See Thakur Barmha v. Jibanram Marwari, ((1913) 41 Ind App 38 (PC). Again, in Gossain Dass Kundu v. M. Agrtan Sardar, (1913) 22 Ind Cas 26 (Cal) the land sold was described by boundaries and area but the area was found to be incorrect. It was held to be a case of mis-description of the area and boundaries were held to prevail. The present case is much stronger inasmuch as the boundaries fully tally with the area. The matter may have been different if no boundaries or area had been given in the certificate of sale and only plot number was mentioned but here we have boundaries, area and the plan of the property sold and all of them include the land in dispute, the so-called mistake in the plot number even if it is there must be treated as mistake in the description which should not affect the property sold.

12. To sum up, I hold that the Certificate of Sale Ex. 1 is a title-deed which must not be loosely construed. I further hold that since it has not been proved that the land in question was not a part of the compensation pool, as defined under Section 14 of the Act, there is no substance in the contention that the Certificate of Sale Ex. I was wrongly issued in respect of the disputed land. As already pointed out above, the Certificate of Sale Ex. 1 and the plan Ex. 2 fully cover the land in question and therefore the plaintiff is entitled to grant of injunction as prayed.

13. No other point has been pressed before me.

14. I, therefore, allow the appeal, set aside the decree passed by the learned Senior Civil Judge and restore that of the trial court and decree the suit with costs throughout.

15. The prayer for Leave to Appeal is refused.


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