A.S. Nehra, J.@mdashAmar Chand, defendant has filed this appeal against a judgment and decree dated 20th August, 1986, passed by the Additional District Judge, Faridabad, by which the appeal filed by the appellant was dismissed and judgment and decree dated 24th October, 1984 passed by Sub Judge Ist Class, Palwal, was upheld.
2. Brief resume of the case is that the plaintiffs filed a suit against the defendants for possession of land measuring 41 kanals 3 marlas mentioned in para 1 of the petition.
3. It has been averred in the plaint that the land in question previously belonged to Ram Dayal, defendant No. 4, father of the plaintiffs, from whom it has devolved upon them; that defendant No. 4 was a small land owner at the time of the commencement of the Punjab Security of Land Tenures Act, 1953; that Collector Agrarian, Palwal wrongly declared 41 kanals 3 marlas land as surplus without affording the and owners an opportunity to show otherwise; that the plaintiffs became owners in possession of the said land in the year 1972, by virtue of a family settlement which was accepted by the Civil Court and a decree was passed, that on 24th January, 1971, the appointed day under the Haryana Ceiling on Land Holdings Act 1972, the total holding of plaintiffs and defendant No. 4 was not more than 1 kanals and 14 marlas and no land was declared surplus by the Collector. That Amar Chand, defendant No. 3 claims that he is allottee in possession of the land in question; that he was put in possession of land in question on 2nd January, 1981 illegally and wrongfully and that the plaintiffs and defendant No. 4 were small landowners throughout and as such their land could not have been allotted to the said Amar Chand and given possession on 2nd January, 1981 as the land had also not been utilized, till then.
4. The suit has been resisted by defendant Nos. I to 3 on the ground that Civil Court has got no jurisdiction to entertain and try the suit. The locus standi of the plaintiffs and the maintainability of this suit has also been contested. It has been further alleged that the land in question was declared surplus vide order dated 29th January, 1960 passed by the Collector,Agrarian, Palwal under the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Punjab Act) and the said surplus area vested in the State Government under section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter called the Haryana Act).
5. A notice under Section 5C of the Punjab Act was issued to the plaintiffs and valid orders declaring the land surplus was issued. It is further alleged in the written statement that the plaintiffs filed an application under sections: 19C, 19B and 10A of the Punjab Act before the Collector, Palwal, which was dismissed on 6th December, 1977. Appeal was dismissed by the Commissioner Ambala on 6th April, 1979. The land already declared surplus on 29th January, 1960 was not added in the holding of the plaintiffs and defendant No. 4 for declaring their permissible area under the Haryana Act.
6. On the basis of the pleadings of the parties, the following issues were framed:
(1) Whether the land in suit previously belonged to defendant No. 4, who transferred it in favour of Shri Radhey as alleged in para 4 of the plaint ? OPP.
(2) Whether the plaintiffs are owners of the land in dispute as averred in para Nos. 1 and 6 of the plaint ? OPP.
(3) Whether the impugned order of the Collector Agrarian is null and void and not binding on the rights of the plaintiffs as alleged in para No. 5 of the plaint ? OPP.
(4) Whether this Court has no jurisdiction to entertain and try the present suit ? OPP.
(5) Whether the suit is not maintainable in the present form ? OPD.
(6) Whether the plaintiffs have no locus standi to file the present suit ? OPD.
(7) Whether the suit is had for want of notice under section 80 Civil Procedure Code ? OPD.
(8) Whether the plaintiffs are estopped by their own acts and conduct from filing the present suit ? OPD.
(9) Whether the suit of the plaintiffs is vexatious to their knowledge and deserves to be dismissed with special costs ? OPD.
(10) Relief.
7. Trial court decided issue No. 1 in favour of the plaintiffs. Issue Nos. 2 and 3 were also decided in favour of the plaintiffsrespondents and it was held that the plaintiffs are owners of the land in dispute and the impugned order of the Collector allotting the land to the defendantappellant and putting him in possession on 2nd January, 1981 is null and void and not binding upon the rights of the plaintiffs. The suit filed by the plaintiffs respondents was decreed on 24th October, 1985. Appellantdefendant aggrieved by the judgment and decree of the trial Court filed an appeal before the Additional District Judge (IV), Faridabad which was dismissed on 20th August 1986. Appellant filed this appeal on which notice of motion was issued by this Court and after hearing the counsel for the parties this appeal was dismissed on 21st January, 1987, in limine.
8. Appellant filed Civil Appeal No. 1753 of 1988 (in SEP. 5055 of 1987) in the Supreme Court which was allowed on 17th August, 1987 and the following orders was passed by the Supreme Court.
"Special Leave granted. Arguments heard.
We are inclined to the view that the High Court was not justified in dismissing the second appeal in limine. Undoubtedly, redetermination of the surplus area under the provision of Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 would arise if the land declared surplus under dealing with the question the High Court had necessarily decide whether there was an allotment made favour of the appellant Amar Chand as assest before us, and if so, whether the learned District Judge was right in holding that the surplus land ha not been utilized within the meaning of Section 12(3) of the Act. We regret to find that the High Court in dismissing the second appeal summarily failed to apply its mind to these questions.
We accordingly allow the appeal, set aside the judgment and order of the High Court and direct High Court to hear and dispose of the second appeal on merits as expeditiously as possible. No cost."
9. Defendantsappellant have filed the following documents to prove their case: Ex. D 1 is a copy of the order dated 29th January, 1960 passed by the Collector, Palwal by which 415 3/4 standard acres equal to 41 kanals 3 marlas was declared surplus. Ex. D2 is an order passed by the Collector, Agrarian, Palwal by which the application filed by defendant No. 4 under sections 19B, 19A and section 10A of the Punjab Act was dismissed on 6th December, 1977. Ex. D3 is a copy of the order passed by the Commissioner on 6th April, 1979 by which the appeal of defendant No. 4 was dismissed. Ex. D4 is an order dated 28th August, 1980 passed by the S.D.O., CivilcumAllotment Authority, Palwal by which the suit land was allotted to the defendantappellant. Ex. D5 is a copy of the report Roznamcha dated. 2nd January, 1981 by which the possession of the suit land was delivered to the detendantappellant. Ex. D is a copy of the order passed by the Collector, Palwal, dated 12th September, 1960, by which the application of Amar Chand, defendantappellant for allotment of area was allowed, Plaintiffrespondents examined Patwari PW 2 who proved Goshwara Exs P1 to P10 and also produced Ex. PX, a certified copy of the order passed by the Prescribed Authority, Palwal on 30th January, 1979, under the Haryana Act.
10. The learned counsel for the appellant has submitted that in view of section 12(3) of the Haryana Act, Ram Dayal, defendant No. 4, father of the plaintiff respondents, was divested of the surplus area declared in his hand vide order dated 29th January, 1960, Exhibit D1 and therefore Ram Dayal was not entitled to select permissible area for his family or for each of his adult sons under the provisions of the Haryana Act.
11. Section 12(3) of the Haryana Act reads as under :
12. (3) The area declared surplus or tenants'' permissible area under the Punjab Law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared under the Punjab Law or the Pepsu Law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration."
12. Haryana Act come into force on 23rd December, 1972. Defendant No. 4 filed a declaration under section 9 of the Haryana Act with the Collector, who after verifying the facts came to the conclusion that Ram Dayal was not a big landowner under the Haryana Act and, therefore, his case was filed. It has been specifically mentioned in the written statement that while deciding the surplus area case of Ram Dayal under the Haryana Act the land which was declared surplus under the Punjab Act was not included in the total holding of Ram Dayal.
13. The learned counsel for the plaintiff respondents has argued that on 23rd December, 1972, when the Haryana Act came into force, Ram Dayal had no surplus land in his hand. If the provisions of the Haryana Act are kept in view then Ram Dayal had a right to select permissible area for his adult sons under the Haryana Act. It has been further contended that the order of the Prescribed Authority Exhibit PX dated 30th January, 1979 held that Ram Dayal is not a big landowner and he owns area less than permissible area prescribed under the Haryana Act. There is no force in this argument of learned counsel for the plaintiff respondents because on the appointed day i.e. 24th January, 1971 the land declared surplus under the Punjab Act has vested in the State and, therefore, Ram Dayal was not entitled to select permissible area for his family or for his adult sons under the Haryana Act and the suit land has been rightly allotted to the defendantappellant.
14. According to the evidence led before the Civil Court, suit land was allotted on 28th August, 1980 vide Exhibit D1 by the S.D.O. CivilcumAllotment Authority, Palwal to the appellant and the possession of the suit land was delivered to the appellant on 2nd January, 1981 vide Exhibit D5. As mentioned above, no other evidence was led by the authorities before the Civil Court qua allotment of the suit land.
15. Amar Chand, appellant filed Civil Appeal No. 1753 of 1987 in the Supreme Court and alongwith the appeal Amar Chand filed a copy of the order passed by the Collector, Palwal on 12th September, 1960 by which his application for allotment of land was allowed. The certified copy of the order dated 12th September, 1960, passed by the Collector Palwal, is Exhibited as D6 in the Civil Suit filed by the plaintiff respondents.
16. Amar Chand has also filed a copy of the Qabuliyatnama dated 17th August 1960 and he had also filed a copy of the order by which Collector, directed Ram Dayal to hand over the possession of surplus land to the appellant.
17. Alongwith the appeal in the Supreme Court, appellant also filed a copy of the report Roznamcha dated 15th September, 1960 by which the appellant was delivered actual physical possession of the suit land in the presence of Ram Dayal, landowner.
18. The correctness of all the abovementioned documents submitted by the appellant along with the appeal in the Supreme Court have not been challenged by the plaintiffrespondents and, therefore, I hold that the suit land was utilized on 15th September, 1960 when the possession of the suit land was delivered to the appellant in accordance with the provisions of the Punjab Act.
19. Appellant after 15th September, 1960 remained in possession for quite some time but he was illegally dispossessed by the plaintiff respondents. Therefore, appellant again applied for allotment of the suit land which was allotted on 28th August 1980 and the possession of the suit land was again delivered to the appellant on 2nd January, 1981 by Exhibit D5.
20. Plaintiffrespondents have made an averment in Para 3 of the plaint that plaintiff respondents became owners in possession of the suit land in the year 1972 by virtue of a family settlement which was accepted by the Civil Court and a decree was passed. But no Civil Court decree has been produced to prove the family settlement. Therefore, plaintiffrespondents have not become owners in possession of the suit land in the year 1972 by virtue of a family settlement.
21. Since the suit land has been utilized in accordance with the Punjab Law on 15th September, 1960, therefore, Ram Dayal, has no right to select permissible area for his adult sons under the Haryana Act. Even if it is held that the appellant was allotted suit land for the first time on 28th August, 1980 and the possession of the suit land was given to him on 2nd January, 1981. Ram Dayal, defendant No. 4 is not entitled to select that area which has been declared surplus under the Punjab Act as permissible area for his adult sons under the provisions of the Haryana Act because the suit land has vested in the State on 24th January, 1971.
22. The learned counsel for the appellant in support of his case has relied upon Smt. Jaswant Kaur and another v. State of Haryana and another, 1977 RLR 418 Thath Singh v. State of Haryana, 1986 PLJ 402 : 1986 R.R.R. 180 and Bharat Bhushan v. State of Haryana and others, 1990(2) RLR 393 : 1991(1) RRR 223 which are fully applicable to the facts of the present case. The learned counsel for the plaintiffrespondents has not cited any judgment taking a contrary view.
23. In view of the abovementioned discussion, the finding of the learned lower Court on issues No. 2 and 3 set aside. Judgment and decree passed by the learned lower Court are set aside. The appeal filed by the appellant is allowed with costs and the suit filed by the plaintiffrespondents is dismissed.
