Allowed

-Do- v. Rolu Ram

Punjab & Haryana HC21 Sept 2011RSA/272/1987

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Punjab and Haryana addressed a suit for land possession. The respondent claimed rights based on an allotment that had expired. The Court ruled the suit infructuous due to the expiration of the permit period, dismissing the appeal and restoring the trial Court's judgment.

What did the court decide?

Impugned judgment of first appellate court set aside; trial court judgment and decree of dismissal restored; suit dismissed; parties to bear own costs.

-Do- Vs Rolu Ram — Property and Title | Punjab & Haryana HC (2011)

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RSA No.272 of 1987(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.272 of 1987(O&M) Date of Decision: September 21, 2011

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Fauja Singh and another

.....Appellants

Rolu Ram

.....Respondent

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.M.L.Sarin, Sr.Advocate with Mr.Nitin Sarin, Advocate for the appellants .

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Mr.D.S.Bali, Sr.Advocate with Mr.R.A.Yadav, Advocate for the respondent.

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.....

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RAM CHAND GUPTA, J.(Oral)

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The present regular second appeal has been filed against judgment and decree dated 2.1.1987 passed by learned Additional District Judge, Hissar, allowing appeal filed by respondent-plaintiff against judgment and decree dated 29.1.1986 passed by learned Additional Senior Sub Judge, Fatehabad, dismissing suit filed by respondent-plaintiff.

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I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below.

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Briefly stated, respondent-plaintiff filed a suit against present appellants-defendants seeking a decree for possession of land measuring 40 kanals duly described in the plaint. Plea was taken that the land in dispute was allotted to plaintiff by Collector, Hisar, under the East Punjab Utilisation of Lands Act, 1949 (hereinafter to be referred as the `Act') being waste land for a period of 20 years from the year 1971 to the year 1991

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RSA No.272 of 1987(O&M)

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subject to payment of `2.50p per acre as rent per annum. He also installed a tubewell in the land in dispute and reclaimed it. However, as crop of kharif for the year 1980 got damaged, he left the said land and went in search of some job for his livelihood and however, when he returned in March 1982, he found that defendants had taken the possession of the said land and started cultivating the same without any right. However, they had taken the plea that they had purchased the same from its owner. Hence, this suit for possession on the ground that plaintiff is allottee of the land in dispute, whereas defendants are having no right to remain in possession.

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Appellants-defendants contested the suit by taking the plea that the land was purchased by them from its owner and that plaintiff also entered into an agreement dated 11.7.1978 with them and under that agreement plaintiff relinquished his right of possession of the suit land, after receiving compensation of `8700/- and that the plaintiff also submitted an affidavit to the defendants to this effect and got a report regarding relinquishment of possessory rights entered in the revenue records.

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From the pleadings of the parties, following issues were framed by learned trial Court:

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“1. Whether the plaintiff relinquished possession of the suit land alongwith tubewell of his own accord in favour of the defendants as alleged in para no.3 of the written statement. If so, to what effect? OPD

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1-A Whether the plaintiff is estopped from bringing the present suit by his own act and conduct? OPD

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1-B Whether the suit is time barred? OPD

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Relief.”

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RSA No.272 of 1987(O&M)

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Evidence was adduced by both the parties in respect of their respective contentions. However, learned trial Court dismissed the suit filed by respondent-plaintiff by holding that respondent-plaintiff had relinquished possession of the suit land alongwith tubewell of his own accord in favour of the defendants.

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Aggrieved against the said judgment and decree, present respondent-plaintiff filed appeal before learned Additional District Judge, Hissar, which was accepted and the judgment and decree passed by learned trial Court was reversed by holding that as the document vide which possessory rights were allegedly relinquished by respondent-plaintiff is unregistered one, the same cannot be looked into. Hence, the suit filed by respondent-plaintiff was decreed.

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Aggrieved against the said judgment and decree passed by learned first Appellate Court, appellants-defendants filed this Regular Second Appeal before this Court, which was admitted vide order dated 22.1.1987 without framing substantial questions of law.

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A Full Bench of this Court in the case of Ghanpat v. Ram Devi, AIR 1978 Punjab and Haryana 137, had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs, (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby

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RSA No.272 of 1987(O&M)

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amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure, on a substantial question of law.

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It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others, (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings.

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Hence, in view of this legal proposition, learned counsel for the appellants-defendants was asked to file substantial questions of law, stated to be arising in this appeal.

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Learned counsel for the appellants-defendants has filed the following substantial questions of law, stated to be arising in this appeal:-

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“1.Whether the findings recorded by the lower appellate Court are perverse being against law and evidence on record? 2.Whether the findings of reversal recorded by the lower appellate Court are vitiated by the wrong and erroneous application of law and legal principles?

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3.Whether a transfer of possession of land for a consideration

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RSA No.272 of 1987(O&M)

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on basis of an unregistered document can be read for the collateral purpose of determining the nature of possession? 4.Whether a surrender of possession as opposed to surrender of tenancy, for consideration on the basis of a written document would require registration?

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5.Whether the finding recorded by the lower appellate Court reversing the well reasoned finding of the trial Court is a result of wrong and erroneous application of the laws?”

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It has been contended by learned counsel for the appellants that admittedly appellants are in possession of the premises in dispute and that respondent-plaintiff is claiming right over the same on the plea that the same was allotted to them for a period of 20 years under the Act and, however, the said period of 20 years had already expired and hence, respondent-plaintiff is having no right to seek possession from present appellants as respondent-plaintiff himself is no more having right in the property in dispute.

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It has also been very fairly conceded by learned counsel for the respondent-plaintiff that the suit filed by respondent-plaintiff has become infructuous as period of 20 years for which the land in dispute was allotted to him under the Act has already expired.

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Hence, in view of the fact that respondent-plaintiff is having no more right to seek a decree of possession against the present appellantsdefendants, the present appeal is accepted. Impugned judgment and decree passed by learned first appellate Court is set aside and the judgment and decree passed by learned trial Court is restored. As a consequence thereof, suit filed by respondent-plaintiff stands dismissed.

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RSA No.272 of 1987(O&M)

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However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs throughout.

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21.9.2011 (Ram Chand Gupta) meenu Judge

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Note: Whether to be referred to Reporter? Yes/No.

-Do- v. Rolu Ram

Case brief

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-Do- v. Rolu Ram

Case brief

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