Remanded

Massa Singh and Anr. v. Financial Commissioner Appeals-I & Ors.

Punjab & Haryana HC3 Dec 2008CWP/1014/2003

Case brief

AI extract

What is this about?

In a writ petition concerning enforcement of a partition decree claiming limitation bar, the High Court inferred restoration of dismissed execution proceedings due to subsequent proceedings by the other party. The court distinguished a cited precedent regarding admission of facts in written statements where record evidence was unavailable. The impugned remand order was set aside, and the matter re

What did the court decide?

Impugned order dated 14.10.2002 set aside; matter remanded to Financial Commissioner, Revenue, Punjab for re-adjudication; parties directed to appear on 12.1.2009.

Massa Singh and Anr. Vs Financial Commissioner Appeals-I… — Partition | Punjab & Haryana HC (2008)

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CWP No.1014 of 2003 1

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IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.

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CWP No. 1014 of 2003 Date of decision: 3.12.2008

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Massa Singh and another

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....Petitioners.

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vs.

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Financial commissioner (Appeals-1) Punjab and others.

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..Respondents

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CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MS.JUSTICE NIRMALJIT KAUR.

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Present: Mr.B.R.Mahajan, Advocate, for the petitioners.

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Ms.Reeta Kohli, Addl. Advocate General,Punjab, for respondent Nos. 1 to 4.

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Mr.G.S.Bhatia, Advocate, for respondent Nos. 5 and 6.

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J.S.KHEHAR,J. (Oral)

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Father of the petitioners before this Court filed an application for partition of land on 19.3.1968, in furtherance whereof, the competent revenue authority determined the mode of partition on 17.4.1969. The final order of partition was then passed on 19.5.1970, leading to the preparation of the “sanad takseem”. In the aforesaid determination, the father of the petitioners was held entitled to 17 kanals and 4 marlas of land. It is the case of the petitioners before this Court, that the other co-sharers did not prefer an appeal against the orders, referred to hereinabove, and that the same became final. Consequent upon the finalisation of the proceedings, by the order dated 19.5.1970 whereby the final order of partition was passed, the other co-sharers were directed to deliver the possession of 17 kanals 4

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CWP No.1014 of 2003 2

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marlas of land to the father of the petitioners, after harvesting the crop of Rabi 1970. On account of the non implementation of the order dated 19.5.1970, the father of the petitioners filed an application for execution in 1971. This application for execution filed in the year 1971, was dismissed in default by an order dated 7.9.1971 (Annexure P3).

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It is the contention of the learned counsel for the petitioners that an application for restoration of the execution proceedings was filed and allowed, whereas, the contention of the learned counsel for the cosharers is that no application for setting aside the order dated 7.9.1971 (whereby the execution application filed by the father of the petitioners was dismissed in default) was ever filed, and as such, the execution proceedings never came to be restored. This is the primary controversy that will have to be adjudicated upon while disposing of the present writ petition. In spite of the aforesaid, it is imperative for us to notice the sequence of facts, which emerged thereafter.

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All the co-sharers other than the father of the petitioners were dissatisfied with the orders dated 17.4.1969 (whereby the mode of partition was finalised, as well as, the order dated 19.5.1970 i.e. the final order of partition) alleging that the aforesaid two orders had been passed ex parte. Accordingly, an application was filed on 17.4.1974 by the alleged other cosharers presently represented through respondent No.5 for setting aside the orders dated 17.4.1969 and 19.5.1970. It is not a matter of dispute that the aforesaid application for setting aside the orders dated 17.4.1969 and 19.5.1970, was dismissed on 6.2.1975 (Annexure P5).

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In the meantime, fearing that the father of the petitioners would gain possession of the land in question on the basis of the orders dated

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17.4.1969 and 19.5.1970, respondent No.5 filed a civil suit asserting that he was owner in possession of the entire land, and that, the partition ordered in favour of the father of the petitioners vide orders dated 17.4.1969 and 19.5.1970, be set aside. Along with the aforesaid civil suit, respondent No.5 moved an application under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, and gained a favourable order, whereby the dispossession of respondent No.5 at the hands of the father of the petitioners, was stayed on 10.6.1974. Eventually, the application moved under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, was dismissed by the trial Court on 11.8.1975.

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On the vacation of the interim order, the father of the petitioners moved an application dated 13.8.1975 (Annexure P6) bringing to the notice of the revenue authorities that the interim order which stood in his way from enforcing the orders dated 17.4.1969 and 19.5.1970 had been vacated, and as such, made a prayer that warrant of possession be issued in his favour. In continuation of the aforesaid, symbolic possession was granted to the father of the petitioners on 14.9.1975, as is evidenced from the report of possession (dated 14.9.1975 Annexure P7) and the “rapat roznamcha” ( Annexure P8).

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Despite the passing of the aforesaid orders whereby symbolic possession was vested with the father of the petitioners, respondent No.5 filed an application against the order dated 11.8.1975, vide which his application under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, had been dismissed. Respondent No.5 was again allowed an interim direction whereby dispossession of respondent No.5 from the suit land was stayed. As a consequence of the interim order passed by the lower

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CWP No.1014 of 2003 4

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appellate Court, the execution proceedings pending before the revenue authorities were again consigned to the record room on 29.10.1975 (Annexure P9). Be that as it may, the appeal preferred by respondent No.5 against the order dated 11.8.1975, was also dismissed on 20.3.1978.

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Consequent upon the dismissal of the appeal whereby the interim order passed in favour of respondent No.5 was vacated by the lower appellate Court, respondent No.5 approached this Court by filing Civil Revision No.598 of 1978. With the consent of the rival parties, the aforesaid Civil Revision was allowed by this Court on 31.1.1979, with the direction to the trial Court to decide the main suit within three months. This Court further directed that dispossession of respondent No.5 will remain stayed till the final disposal of the civil suit.

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The focus then went back to the proceedings before the trial Court. The civil suit filed by respondent No.5 came to be dismissed on 14.4.1980 (Annexure P11). Dissatisfied with the order passed by the trial Court, respondent No.5 preferred an appeal before the lower appellate Court. The appeal preferred by respondent No.5 was first dismissed on 23.12.1982 and yet again on 21.3.1984 (after the matter was remanded by this Court back to the first appellate Court). Proceedings then came back to this Court on account of a challenge at the hands of respondent No.5 to the order dated 21.3.1984. The aforesaid challenge was raised through RSA No.1050 of 1984. Respondent No.5 lost at the hands of this Court when the aforesaid Regular Second Appeal was dismissed on 24.9.1996. It is not a matter of dispute that a Petition for Special Leave to Appeal filed by respondent No.5 against the order passed by this Court on 24.9.1996 in RSA No.1050 of 1984, was also dismissed on 6.12.1996 ( Special Leave to

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CWP No.1014 of 2003 5

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Appeal (Civil) No.21550 of 1996) by the Apex Court.

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The situation again arose for the revival of the execution proceedings. Since the father of the petitioners had died (in the meantime) the petitioners moved an application on 30.9.1996 for the issuance of warrants of possession. By an order dated 11.10.1996 warrant of possession was actually issued.

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Respondent No.5 Iqbal Singh filed an application before the Executing Court raising certain objections including the objection that the application filed by the father of the petitioners for executing the orders dated 17.4.1969 and 19.5.1970, were barred by limitation. This claim of respondent No.5 was based on the mandate of section 122 of the Punjab Land Revenue Act, 1887. The objections raised by respondent No.5 Iqbal Singh were dismissed on 13.11.1996. The appeal preferred by him (against the order dated 13.11.1996) was however allowed on 24.1.1997 (Annexure P13), inasmuch as, the matter came to be remanded by the Appellate Authority to the Assistant Collector, Amritsar. Dissatisfied with the order dated 24.1.1997 (Annexure P13), the petitioners herein filed a Revision Petition. The aforestated Revision Petition was however, decided against the petitioners on 20.1.2000 (Annexure P14).

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Consequent upon the remand of the proceedings to the Assistant Collector, the matter was again adjudicated upon by the Assistant Collector, Amritsar, and again decided in favaur of the petitioners by an order dated 10.5.2001 (Annexure P15). Respondent No.5 impugned the order dated 10.5.2001 (Annexure P15) by preferring an appeal. The said appeal was dismissed by an order dated 16.8.2001 (Annexure P16) leading to the filing of a Revision Petition (again at the hands of respondent No.5).

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CWP No.1014 of 2003 6

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The aforesaid Revision Petition was also dismissed on 22.8.2001 (Annexure P17). Still dissatisfied with the orders passed by the revenue authorities, respondent No.5 preferred a second Revision Petition which was allowed by an order dated 14.10.2002(Annexure P18).

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The order dated 14.10.2002, has been impugned by the petitioners before this Court. By the impugned order dated 14.10.2002, the revisional authority remanded the matter back to the Assistant Collector,Amritsar, directing him to re-adjudicate upon the issue of limitation, by expressly holding that the Assistant Collector had not adjudicated upon the matter on which the controversy had been allowed by the Appellate Authority vide its order dated 24.1.1997 (Annexure P 13).

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Another issue that needs to be adjudicated upon, besides the principal issue (noticed hereinabove), is that consequent upon the passing of the impugned order dated 14.10.2002, the parties were to appear before the Assistant Collector, Amritsar, on 11.11.2002, but no proceedings were conducted on 11.11.2002, as the file of the case had by then not reached the office of the Assistant Collector, Amritsar. Thereafter, an ex parte order was passed by the Assistant Collector, Amritsar, on 17.11.2002, upholding the objection on the issue of limitation (and other issues raised on behalf of respondent Nos. 5 and 6). It is also the contention of learned counsel for respondent Nos. 5 and 6 that the order dated 17.11.2002, was challenged by the petitioners by preferring an appeal, which was dismissed on 9.2.2005, whereupon, the petitioners filed a Revision Petition which is presently pending before the Commissioner, Jalandhar. It is, therefore, contended that the instant writ petition has been rendered infructuous.

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While dealing with the main contention namely, the remand of

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CWP No.1014 of 2003 7

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the matter to the Assistant Collector, Amritsar dated 24.1.1997 (Annexure P13), it is our foremost responsibility to determine whether the issue of limitation was actually adjudicated upon or not. If the same had been adjudicated upon, then the impugned order of remand dated 14.10. 2002, is liable to be set aside. If the answer to this query is otherwise, the impugned order dated 14.10.2002 (Annexure P18) would be justified.

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We have perused the order passed by the Assistant Collector,Amritsar, dated 10.5.2001, which reveals, that the Assistant Collector, Amritsar, expressly dealt with the issue by taking into consideration the fact that the petitioners' father had filed an execution application in the year 1971, and thereafter, recorded a conclusion that the aforesaid application filed by the petitioners' father had been filed within the period of limitation of three years, and that, in furtherance of the aforesaid application, warrant of possession was actually issued in favour of the father of the petitioners.

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In spite of the determination rendered by the Assistant Collector,Amritsar, by his order dated 10.5.2001, learned counsel for respondent Nos. 5 and 6 has emphatically pointed out, that the same was neither a valid consideration nor the aforesaid consideration was acceptable in law. In this behalf, it is the contention of learned counsel for respondent Nos. 5 and 6 that the execution application filed by the father of the petitioners, was dismissed in default on 7.9.1971 (Annexure P3), and that, the execution proceedings never came to be restored, as the petitioners neither filed any application for restoration, nor was the order dated 7.9.1971, ever set aside, so as to restore execution proceedings initiated by the father of the petitioners.

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CWP No.1014 of 2003 8

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In order to repudiate the controversy raised by the learned counsel for the respondents, learned counsel for the petitioners acknowledges, that the petitiones are neither in possession of the application which they had filed for restoration of the execution proceedings dismissed in default on 7.9.1971, nor are they in possession of the actual order passed by the executing authority setting aside the order dated 7.9.1971. In this behalf, it is pointed out by the learned counsel for the petitioners, that the record in the office of the Assistant Collector, Amritsar, is not available, and that, the instant issue will have to be decided on the basis of inferences alone. The factual position pointed out by the learned counsel for the petitioners, that the record of the Assistant Collector, Amritsar, is not available, is not a matter of dispute. We, therefore, concur with the learned counsel for the petitioners, that the issue in hand will have to be decided on the basis of inferences. In the absence of any positive inference, it will have to be assumed in favour of the respondents that the order dated 7.9.1971, dismissing the execution application in default never came to be restored.

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The first contention of the learned counsel for the petitioners in this behalf (that the execution proceedings were restored) is that, after the interim order passed under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, was vacated by the trial Court on 11.8.1975, the father of the petitioners moved an application on 13.8.1975 (Annexure P6) seeking the issuance of warrants of possession. In furtherance whereof, symbolic possession was granted to the petitioners on 14.9.1975 (Annexures P7 and P8). The second contention of the learned counsel for the petitioners is that, after this Court disposed of Civil Revision No.598 of 1978, requiring the Civil Court to decide the main suit within three months; and after the

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CWP No.1014 of 2003 9

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aforestated Civil Suit was dismissed on 14.4.1980, the petitioners could not re-initiate the execution proceedings on account of the fact that in the meantime the lower appellate Court and thereafter, this Court again passed interim orders in favour of respondent No.5 staying the dispossession of respondent No.5 from the suit land. However, when the matter attained finality with the dismissal of RSA No.1050 of 1984 on 24.9.1996, within a few days thereof, the petitioners moved an application dated 13.9.1996 again claiming issuance of warrants of possession, and that, a warrant of possession was actually issued on 11.10.1996. This, according to the learned counsel for the petitioners, could not have been done, but for the fact, that execution proceedings were still pending. Thirdly, it is pointed out that during the pendency of Civil Revision No.598 of 1978, respondent No.5 moved Civil Miscellaneous Application No.965-CII of 1978, wherein the title of the application, was as under:-

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“ Application under Order 39 Rules 1 and 2 read with Section 151 CPC praying that in the interest of justice, equity and fairplay an ad-interim injunction Order be issued against Sadhu Singh defendant-Respondent No.1 restraining him from dispossessing the applicant from the land in dispute in execution of the Order dated 9.5.1970 passed by the Tehsildar (Assistant Collector Ist Grade), Amritsar, during the pendency of the Revision Petition in this Hon'ble Court.....”.

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On the basis of the aforesaid prayer, this Court passed the following order on 31.1.1979:-

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“ This petition by the plaintiff is directed against the order of the Additional district Judge, Amritsar, dated 20^th March, 1978 vide which he affirmed the order of the trial Court dismissing the application for grant of temporary injunction.

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Both the learned counsel for the parties agree that the case is pending since 1975 and the trial Court be directed to dispose of the suit within three months from today and, in the meantime, status quo regarding possession with respect to the land in dispute may be maintained. Accordingly it is directed that the trial Court will decide the case within three months from today and in the meanwhile the petitioner will not be dispossessed from the land in dispute. Consequently, the orders of the trial Court and the additional District Judge, are quashed. No order as to costs.”

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It is the vehement contention of the learned counsel for the petitioners that respondent No.5 himself acknowledged the pendency of execution proceedings, and sought an injunction keeping in view the aforestated proceedings. In this behalf, it is pointed out, that if the order dated 7.9.1971 (Annexure P3) had not been set aside, and execution proceedings had not been pending, there would have been no occasion for respondent No.5 to file Civil Miscellaneous Application No.965-CII of 1978, so as to pray for the restraint of the the petitioners' father from dispossessing respondent No.5 from the land in dispute in execution of the order dated 19.5.1970.

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The factual position noticed in the foregoing paragraph, is not a subject matter of dispute at the hands of respondent No. 5 and 6. From the aforesaid, it is imperative for us to infer that the execution proceedings remained pending despite the order dated 7.9.1971 (Annexure P3). It could have only been possible to file application for reviving the execution proceedings from time to time, as have been noticed in the foregoing paragraph, if the same was pending. This could not have been done if the execution application itself had been dismissed in default on 7.9.1971.The very fact that express orders were passed on subsequent applications in

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furtherance of the claim made on behalf of the petitioners for execution of the orders dated 17.4.1969 and 19.5.1970, led us to the same conclusion. The clinching factor however is, that in the prayer made in the Civil Miscellaneous Application No.965-CII of 1978, respondent No.5 himself impliedly acknowledged the pendency of execution proceedings and sought an interim order in his favour, so as to restrain the petitioners from executing the orders dated 17.4.1969 and 19.5.1970.

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In the totality of the factual position, noticed hereinabove, we are satisfied on the basis of the ancillary facts brought to our notice (as the original files were stated to be not available with the Assistant Collector, Amritsar) that the order dismissing the execution petition filed by the father of the petitioners in default on 7.9.1971, was actually set aside, and that, execution proceedings were pending during the entire litigation initiated by respondent No.5 through the civil suit filed at his behest, as is apparent from the factual position recorded hereinabove.

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Now, since we have concluded that the order dated 7.9.1971, was set aside, this would further mean that the execution application filed by the father of the petitioners in 1971, was pending for consideration before the revenue authorities. Since the order sought to be implemented are dated 17.4.1969 and 19.5.1970, the execution application which was filed in 1971 was well within three years of the period of limitation expressed in section 122 of the Punjab Land Revenue Act, 1887. Thus viewed, the impugned orders by which the proceedings were remanded by the second Revisional Authority (vide order dated 14.10.2002 Annexure P18) deserve to be set aside, and are accordingly set aside.

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It would be unfair to the learned counsel for for respondent Nos. 5 and 6 if we do not take into consideration the submissions made by the learned counsel for the respondents on the basis of a decision rendered by this Court in Sujan Kumar v. Chand Singh 2003(3) Civil Court Cases 254 (P&H). The aforesaid determination rendered by this Court under Order VIII rule 9 of the Code of Civil Procedure to the effect that pleadings recorded in the written statement if not expressly denied through replication shall be taken to be admitted as correct. It is the vehement contention of the learned counsel for the respondents, that in the written statement filed on behalf of respondent No.5, it was expressly asserted, that no application had been moved by the father of the petitioners (or the petitioners) for setting aside of the order dated 7.9.1971, i.e., for restoration of the execution proceedings pending before Assistant Collector Amritsar, and further that, no order whatsoever, had been passed by the Assistant Collector, Amritsar, restoring the execution proceedings. It is, therefore, the submission of the learned counsel for the respondents that in the absence of a categoric reply repudiating the aforesaid factual position, the same shall have to be taken to be admitted as correct by the petitioners.

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Having considered the instant contention advanced by the learned counsel for the petitioners, we are satisfied, that the proposition of law raised by the respondents is inapplicable to the facts and circumstances of this case. There was no material with the petitiones to repudiate the factual position depicted in the written statement. It is not a matter of dispute that the record of the office of the Assistant Collector, Amritsar, is not available, and as such, the petitioners could not have taken the risk of making any categoric assertion on one way or the other. Since the

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petitioners chose to repudiate the factual position from the pleadings, as well as, documents appended therewith, we are of the view, that whatever it need to be done at the hands of the petitioners to repudiate the factual position relied by the learned counsel for the petitioners had been done by placing relevant documents on the record of the case. For the reasons recorded hereinabove, we are of the view that the decision rendered by this Court in Sujan Kumar's case (supra) is not applicable to the facts of this case.

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In spite of our conclusion on the main controversy (as has been recorded hereinabove) it is imperative for us also to take into consideration the fact that, the effect of the factual position that consequent upon passing of the impugned order dated 14.10.2002 (Annexure P18) whereby the matter came to be remanded to the Assistant Collector, Amritsar, wherein the parties were directed to appear before the Assistant Collector, Amritsar, on 11.11.2002. The petitioners did not appear before the Assistant Collector, Amritsar, on 11.11.2002. The fact however remains that the files of the case had not reached the office of the Assistant Collector, Amrtisar on 11.11.2002. Therefore, there was no occasion for the petitioners to appear before the Assistant Collector,Amritsar, on 11.11.2002. Without renotifying and informing the petitioners about the next date of hearing, the petitioners were proceeded against ex parte on 17.11.2002. In any case, after this Court had entertained the present controversy, and had passed an order staying the operation of the impugned order dated 14.10.2002 (Annexure P18), the fact that the Assistant Collector, Amritsar, entertained the controversy and passed orders thereon was inconsequential. Also the fact that, an appeal was filed by the petitioners thereafter which was

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dismissed on 19.2.2005, whereupon, revision petition stands filed at the hands of the petitioners,are all inconsequential for the same reason. Neither of the aforesaid authorities could determine the controversy after the interim order was passed by this Court nor any further proceedings could have taken place thereafter.

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In view of the above, the instant writ petition is allowed. The impugned order dated 14.10.2002 (Annexure P18) is set aside, and the matter is remanded back to the Financial Commissioner, Revenue, Punjab, to re-adjudicate the revision petition filed by respondent Nos. 5 and 6, and to take a decision thereon in accordance with law. Parties through their counsel are directed to appear before the Financial Commissioner,Revenue, Punjab, on 12.1.2009.

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(Nirmaljit Kaur) Judge

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December 3, 2008 rk

Massa Singh and Anr. v. Financial Commissioner Appeals-I & Ors.

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Massa Singh and Anr. v. Financial Commissioner Appeals-I & Ors.

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