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Jeewanmal and ors. Vs. Dr. Dharamchand Khatri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 214 of 1965
Judge
Reported inAIR1971Raj84; 1969()WLN519
ActsConstitution of India - Article 226; Specific Relief Act, 1877 - Sections 9; Displaced Persons (Compensation and Rehabilitation) Act, 1954; Rajasthan (Sale and Allotment of Lands in Mandis) Rules, 1957
AppellantJeewanmal and ors.
RespondentDr. Dharamchand Khatri and ors.
Appellant Advocate H.C. Jain and; J.K. Jain, Advs.; S.K. Tewari, Dy. Go
Respondent Advocate C.L. Agarwal and; B.R. Arora, Advs. for Respondents Nos. 1 to 7
DispositionPetition allowed
Cases ReferredAnoopchand Revashanker Metha v. Amerchand
Excerpt:
.....the transfer of possession of the disputed lands by the overseer under the orders of the secretary, mandi development board cannot lend colour to such a transfer of possession as being in due course of law.;(b) specific relief act - section 9--scope of.;in order to bring a suit under section 9 of the specific relief act a person who has been dispossessed of his immovable property without his consent has to prove two things viz. (1) that he has been dispossessed without his consent and (2) that the dispossession has been brought about not in due course of law.;the true scope of section 9 of the specific relief act is to see whether the plainl iff has been dispossessed without his consent or in a manner otherwise than in due course of law, and if these two ingredients are..........board, hanumangarh, under the provisions of the rajasthan land revenue (sale and allotment of lands in mandis) rules, 1957 (hereinafter referred as the rules) and it was under the provisions of these rules that an order was issued by the secretary mandi development board, hanumangarh directing the overseer to get the possession of the disputed lands transferred to the auction purchasers. his contention, therefore, is that the possession of the disputed lands was transferred in due course of law and as such a suit under section 9 of the specific relief act was not maintainable.mr. agarwal further urged that the secretary, mandi development board, hanumangarh, was an agent of the government while discharging his duties under the rules and therefore no suit could be brought under.....
Judgment:
ORDER

V.P. Tyagi, J.

1. This writ application under Article 226 of the Constitution has been filed by Jeewanmal, Parmanand and Bhagwandas against Dr. Dharamchand and nine others praying that the judgment of the Senior Civil Judge, Ganganagar dated 1st June, 1963, dismissing the suit of the petitioners filed under Section 9 of the Specific Belief Act may be quashed.

2. The facts giving rise to this litigation are as follows:

Petitioners are the refugees who were allotted three pieces of land known as Ahatas Nos. 67, 71 and 72 situate in Mandi Pilibanga in the District of Ganganagar. This allotment order was made on 5th of May, 1961, and the Settlement-cum-Managing Officer, Ganganagar issued Sanads to the petitioners to evidence the transfer of the lands to them. It is said that on 3rd of December, 1961, the possession of these three plots of land was handed over to the petitioners by the revenue Patwari in compliance with the orders of the Settlement-cum-Managing Officer, Ganganagar.

The petitioners' case is that after taking possession of these plots, they did not start construction on them and when they went to Jodhpur to attend some marriage ceremony and were out of Pilibanga, the said lands were auctioned by the Secretary, Mandi Development Board, Hanumangarh, on 16th of April, 1962, and the possession of these plots was handed over to the auction-purchasers-respondents on 13th of July, 1962. When the petitioners returned from Jodhpur to Mandi Pilibanga, they came to know that their plots were sold in auction by the Secretary, Mandi Development Board, Hanumangarh, without any authority of law, and therefore theymade a representation to the said officer (the copy of that representation has not been placed on the record). The petitioners did not receive any reply from the said Secretary and, therefore, on 9th of September, 1962, the petitioners instituted a suit under Section 9 of the Specific Relief Act for the restoration of the possession of the said lands in the Court of Senior Civil Judge, Ganaganagar.

The learned Judge framed issues and after recording evidence of both the parties, decided that the petitioners were in possession of the disputed lands when they were put to auction by the Secretary, Mandi Development Board, Hanumangarh and he also recorded a finding that the petitioners were dispossessed from their lands without their consent, but he came to the conclusion that since the plots in dispute were auctioned by the Secretary, Mandi Development Board. Hanumangarh, who was competent to do so, and it was in pursuance of the orders Issued by the said Secretary that the Overseer of the Board handed over the possession of the disputed plots to the auction purchasers, therefore, it could not be said that the petitioners were not dispossessed of their properties in due course of law, and in this view of the matter, the suit of the petitioners was dismissed.

The petitioners thereafter preferred a revision application in this Court which was decided by learned single Judge on 15th December, 1964. The learned Judge, who disposed of that revision application, was of the view that he could not interfere with the judgment of the trial Court in the exercise of revision jurisdiction but he was definitely of opinion that-

'grave Injustice had been done to the applicants inasmuch as they had been deprived of their property without the authority of law under an ultra vires order of the Secretary, Mandi Development Board, Hanumangarh. The applicants should have more appropriately sought redress in such a case bv filing a writ petition under Article 226 of the Constitution as their fundamental rights were invaded.'

In view of this observation of the learned Judge, the petitioners have filed this writ application under Article 226 of the Constitution mainly on the ground that the learned Senior Civil Judge while dismissing the petitioners' suit did not correctly appreciate the scope of Section 9 of the Specific Relief Act and has erroneously held that since the petitioners have been dispossessed under the orders of the Secretary, Mandi Development Board, Hanumangarh, their dispossession should be taken to be in due course of law.

3. It may be mentioned here that In this writ petition the petitioners have impleaded, besides the defendants, the Secretary, Mandi Development Board. Hanumangarh, the Senior Civil Judge. Ganganagar and the State of Rajasthan, as respondents.

4. The defendants-respondents have filed their reply to the writ application but the other respondents, except the State of Rajasthan, who have been Impleaded in this writ application, have not cared to file their reply.

5. A preliminary objection was raised by Mr. Agarwal. appearing on behalf of respondents Nos. 1 to 7, that this petition suffers from the defect of misjoinder of parties as three persons have jointly filed the writ petition and,, therefore, on that ground alone it stands to be dismissed.

6. It may be observed that the object for filing this writ petition is to get the judgment of the trial Court set aside by issuing a writ of certiorari and for that it has been prayed that the impugned judgment may be quashed. Since that judgment was given in a suit filed jointly by all the three petitioners it became necessary for all of them to jointly come to this Court. It is difficult for me to conceive that one petitioner alone could ask for setting aside the impugned judgment when it was passed in a suit filed jointly by the three petitioners. In these circumstances, the petitioners had no choice but to jointly file this writ petition. The preliminary objection raised by Mr. Agarwal, in the face of the facts of this case,, cannot be upheld.

7. Regarding this finding of the trial Court that the possession of the disputed Ahatas was delivered to the petitioners, learned counsel for the respondents concedes that it cannot be challenged here as no consent was obtained from the petitioners. The only point on which arguments have been addressed to this Court by learned counsel for the respondents is that the lands in dispute were put to auction by the Secretary of the Mandi Development Board, Hanumangarh, under the provisions of the Rajasthan Land Revenue (Sale and Allotment of Lands in Mandis) Rules, 1957 (hereinafter referred as the Rules) and it was under the provisions of these rules that an order was issued by the Secretary Mandi Development Board, Hanumangarh directing the Overseer to get the possession of the disputed lands transferred to the auction purchasers. His contention, therefore, is that the possession of the disputed lands was transferred in due course of law and as such a suit under Section 9 of the Specific Relief Act was not maintainable.

Mr. Agarwal further urged that the Secretary, Mandi Development Board, Hanumangarh, was an agent of the Government while discharging his duties under the Rules and therefore no suit could be brought under Section 9 of the Specific Relief Act as it shall be taken that the Government through its agents had intervened and it was the Government that had dispossessed the petitioners from the lands in dispute. Section 9 of the Specific Relief Act debars a suit against the Government.

8. In order to appreciate the arguments advanced at the Bar, it will be necessary to examine the provisions of Section 9 of the Specific Relief Act of 1877. The relevant portion of Section 9 of the Act reads as follows:

'If any person Is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.

No suit under this section shall be brought against the Central Government or any State Government.'

9. From a careful perusal of this provision of the law, it is apparent that in order to bring a suit under Section 9 of the Specific Relief Act a person, who has been dispossessed of his immovable property without his consent has to prove two things viz. (1) that he has been dispossessed without his consent and (2) that the dispossession has been brought about not in due course of law. It is also clear from this language that the question of title has not to be gone into while proceeding with a suit under Section 9 because the legislature has specifically mentioned that a suit can be brought notwithstanding any other title that may be set up in such a suit. This expression clearly means that even a person who cannot claim, any title in the property can file a suit under this provision of law against a person who can successfully set up his- title in the property. The only thing that a defendant has to establish in such a case in order to save himself from the consequences of the suit is that the dispossession of the plaintiff has taken place in due course of law or with his consent.

10. In the present case, the defendants have raised a plea that the lands in dispute were auctioned by the Secretary, Mandi Development Board, Hanu-mangarh, under the provisions of the Rules and it was in pursuance of that auction proceeding that an order was issued by the Secretary to the Overseer to hand over the possession of the disputed lands to the auction purchasers. According to Mr.. Agarwal, dispossession of the plaintiffs-petitioners in this manner can be said to have been effected in due course of law. This plea brings me to the question as to what this expression 'in due course of law' actually means.

11. Learned counsel for the petitioners submits that the rules do not empower the Secretary, Mandi Development Board to sell the lands which belonged to somebody else. The land which could be sold by the Secretary must vest in the Mandi Development Board and if that land is owned by somebody else then the Mandi Development Board or the Secretary, unless the question of ownership was determined vis a vis the person who is claiming title in that land, was not empowered to put that land to auction under Rule 5 of the said Rules.

It was also urged that according to Rule 16 of the Rules, if a plot is auctioned under Rule 5 by the Secretary, MandJ Development Board, the possession of that plot can he given to the auction purchaser only after the payment of full price and the execution of the deed of conveyance in favour of the auction purchaser. Rule 20, which puts certain restrictions on transfer, further stipulates that a plot of land purchased under these Rules or any right, title or interest therein is not to be transferred in any way until the full price thereof has been paid. Mr. Agarwal has candidly admitted before this Court that the deed of conveyance was executed in this particular case in favour of the auction purchasers, who were the defendants in, the suit, on 19-11-1962 and the possession was handed over on 13-7-1962. He could not, however, state as to when the full price of the land was deposited by the auction purchasers with the Mandi Development Board.

Learned counsel for the petitioners, on the other hand, submits that the full price was not paid by the defendants-purchasers before 13th of July, 1962 when the land was transferred to them. He also suggests that this fact finds corroboration from the reply filed by the State. I need not decide this question as to when the price of the land was paid by the defendants-purchasers, but it is certain, as conceded by Mr. Agarwal, that the deed of convevance was not executed in pursuance of Rule 20 of the Rules before the possession of the lands was transferred to the auction-purchasers. The contention of the petitioners is that the respondents did not comply with these Rules because they were in a hurry to hand over the possession of the disputed lands to the auctionrpurchasers in the absence of the petitioners who had gone out of Pilibanga to Jodhpur to attend some marriage ceremony and. therefore in that hurry they did not even care to comply with the requirements ofthe Rules. Mr. Agarwal, on the other hand, contended that these Rules are not mandatory in nature and, therefore, the non-compliance thereof would not vitiate the transfer and it cannot be said that the transfer was not effected in due' course of law.

12. The question that is to be determined in this case is not whether the possession was given to the respondents in due course of law or not, The real question to be determined is whether the petitioners were dispossessed from these lands in due course of law. It is not disputed before this Court that the lands were transferred by the Settle-ment-cum-Managing Officer, Ganaganatfar to the petitioners under Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. It is also not the case of the respondents that before the lands were put to auction by the Secretary, Mandi Development Board, the petitioners had been dispossessed by some competent authority from these lands. In such circumstances, the petitioners were undoubtedly in possession of the lands at the time when the lands were put to auction by the Secretary, Mandi Development Board, Hanumangarh. No proceedings were taken by the Secretary to dispossess the petitioners from the lands. The only proceeding taken by him was to order the Overseer to hand over these three pieces of land to the auction-purchasers and in compliance with that order which is Exs. 8. 9 and 10 on the record, the possession of the lands was transferred to the auction-purchasers and thus in this process of transferring possession to the auction-purchasers the petitioners were dispossessed from these lands.

13. The question that now arises for determination is whether in those circumstances can it be said that the petitioners were dispossessed in due course of law. In Rudrappa Bin Sankappa v. Narsingrao Ramchandra Heblikar, (1005) ILR 29 Bom 213, the expression 'in due course of law' as used in Section 9 of the Specific Relief Act came up for consideration before the learned Judges of the Bombay High Court, and while deciding that case. Batchelor J. observed as follows :

'To read the words 'due course of law' in Section 9 of the Specific Relief Act, as merely equivalent to the word 'legally' is, we think, to deprive them of a force and a significance which they carry on their very face. For a thing, which is perfectly legal, may still be by no means a thing done 'in due course of law'; to enable this phrase to be predicated of it, it is essential, speaking generally, that the thing should have been submitted to the consideration and pronouncement of the law, and the 'duecourse of law' means, we take It, the regular normal process and effect of the law operating on a matter which has been laid before it for adjudication.'

14. Applying these observations of the learned Judge to the circumstances of this case, it is difficult for me to say that the matter of dispossessing the petitioners from the lands in dispute had attracted the regular normal process and the effect of the law because the petitioners' right to possess the land was not in any manner subject to the provisions of law, nor was their right disturbed by applying any provision of the law before they were actually dispossessed from the lands.

15. Another case relied upon by learned counsel for the petitioners in order to correctly appreciate the import of the expression 'due course of law' is Roshanulla v. Hazir Mahmud, (1913) 18 Ind Cas 727 (Cal). This is a case of Calcutta High Court. In that case the land in dispute was in possession of a tenant and a decree was obtained by the decree-holder against the landlord. In the execution proceedings, the plaintiff-tenant was not a party. The auction purchaser ought to have taken symbolic possession from the tenant under Order 21, Rule 96 but instead the auction purchaser took possession under Rule 95 and the plaintiff tenant was actually dispossessed from the lands which he was holding in jote right.

The question arose whether that dispossession of the plaintiff had taken place in due course of law or not. Their Lordships oil the Calcutta High Court held that though the plaintiff was dispossessed through a legal process issued by a Court but not under the correct provision of the law and, therefore, the dispossession of the plaintiff cannot be said to have taken place in due course of law, and in this view of the matter the rule issued by the Court was made absolute.

16. In another case in Anoopchand Revashanker Metha v. Amerchand, AIR 1951 Mys 101, the possession of the property was obtained through the medium of an officer of the Court not authorised to act in that direction. His Lordship of the Mysore High Court in that circumstance came to the conclusion that the possession of the property could not be said to have been transferred in due course of law. In that case, a warrant of attachment was issued for the attachment of movable property but the Amin dispossessed the plaintiff and gave vacant possession of the premises to the defendant. On a suit filed by the plaintiff under Section 9 of the Specific Relief Act, the Court held the view that the dispossession was not in due course of law and as such the petitioner was entitled to the restoration of possession underthe provisions of Section 9 of the Specific Relief Act.

17. These authorities fully support the contention of learned counsel for the petitioners. It may be said that the lands may have been auctioned under the colour of the law but the dispossession of the petitioners was effected without observing the principles of natural justice and also without complying with the Rule 20 relating to the execution of the title deed in favour of respondents. In such circumstances, the transfer of possession of the disputed lands by the Overseer under the orders of the Secretary, Mandi Development Board cannot lend colour to such a transfer of possession as being in due course of law.

18. The argument of Mr. Agarwal that the Secretary, Mandi Development Board was acting as an agent of the Government and therefore no suit could be brought under Section 9 of the Specific Relief Act is devoid of any force. In the present case, the auction of the disputed plots was alleged to have been ordered by the Mandi Development Board under certain statutory rules empowering the Board to dispose of such lands and, therefore, it is difficult to say that the auction was held for the Government or as an agent of the Government. In my opinion, the Mandi Development Board purported to act under the statutory powers conferred on it by the Rules and not as an agent of the Government. In such circumstances, the Government does not come in the picture at all.

19. The true scope of Section 3 of the Specific Relief Act is to see whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law, and if these two ingredients are established, then the Court dealing with a suit under Section 9 of the Specific Relief Act is left with no other discretion but to restore the possession of the land from which the plaintiff has been dispossessed without due course of law. The order for the restoration of the possession of the land to the petitioners cannot be passed by this Court as it is not sought by the petitioners. The only prayer which is sought is the quashing of the judgment of the trial Court. It is for the trial Court to grant proper relief to the petitioners by disposing of the suit which is being sent back to its file.

20. For the reasons mentioned above, the writ petition is allowed, the judgment passed by the Senior Civil Judge, Ganganagar, dated 1st June, 1963, Is quashed and the case is remanded to the trial Court to take further proceedings in the light of the scope of Section 9 of the Specific Relief Act as clarified by this judgment. The petitioners shall get their costs from respondent Nos. 1 to 7.


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