RSA No.1550 of 1998 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1550 of 1998 (O&M) Reserved on: 26.03.2025 Pronounced on: 02.04.2025 Pat Ram and others .....Appellants Vs. Umesh Chand and others .....Respondents CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. Som Nath Saini, Advocate for the appellants. Mr. Akshay Kumar Goel, Advocate for respondents No.1 and 2. **** DEEPAK GUPTA, J. Suit for declara#on regarding property in dispute filed by plain#ffs Pat Ram etc. (appellants herein), was decreed by the trial Court of learned Sub Judge First Class, Dabwali vide his judgment dated 04.01.1995. However, the appeal filed by one of the defendants, namely, Umesh Chand (respondent number 1 herein) was accepted by the First Appellate Court of learned Addi#onal District Judge, Sirsa vide judgment dated 07.05.1998 by se7ng aside the judgment of the trial Court, thus, dismissing the suit of plain#ffs 2. Against the afore-said reversal, plain#ffs of the case have approached this Court by way of the present Regular Second Appeal. 3. Trial Court record was called. Same has been perused. In order to avoid confusion, par#es shall be referred as per their status before the trial Court. 4. Subject-ma;er of the suit is the land measuring 219 kanals 09 marlas situated in Village Lakhuana, Tehsil Dabwali, details of which are given in the plaint. Page No.1 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) 5.1 Admi;edly, the four defendants, namely, Surinder & Umesh sons of Phusa Ram, and Mahavir & Tara Chand sons of Suraj Mal are recorded to be owner of the suit land as per jamabandi for the year 1984- 85 Ex.P3 in different parcels of the suit land. However, Lachhman, the father -predecessor-in-interest of the plain#ffs is recorded to be tenant on this en#re suit land. 5.2 According to plain#ffs, their predecessor-in-interest, namely, Lachhman, has been in possession of the suit land since prior to 15.08.1947. Purchase applica#on under Sec#on 18 of the Punjab Security of Land Tenures Act, 1953 [Act, 1953] was moved by said Lachhman, which aAer his death was pursued by the plain#ffs being his legal heirs and ul#mately, the same was decided on 05.02.1988 by the then Assistant Collector First Grade, Dabwali, declaring that plain#ffs had become owners in possession of the suit land. Plain#ffs deposited first instalment of ₹4216/- on 19.02.1988 with Treasury Officer, Dabwali and claimed to have become owner of the suit property. It was further the case of the plain#ffs that on the basis of this order dated 5.02.1988 of the Assistant Collector First Grade, Muta#on No.973 (Ex.P1) was sanc#oned in their favour on 05.05.1988. It was alleged that defendants succeeded in manipula#ng the entries in the next jamabandi for the year 1989-90 and instead of incorpora#ng the entries of Muta#on No.973 (Ex.P1), defendants succeeded in showing them to be owner of the suit property, whereas plain#ffs were recorded to be tenant on the suit land. 5.3 With the above averments, plain#ffs prayed for decree of declara#on that they are owners in possession in equal shares of the suit land based upon the order dated 05.02.1988 of the Assistant Collector Ist Grade, Dabwali and the consequent muta#on No.973 dated 05.05.1988 and that entries in the jamabandi for the year 1989-90 in favour of the defendants showing them owners in respect of different parcels of the suit land are wrong, illegal and void having been manipulated by the defendants. Plain#ffs further prayed for a decree of permanent injunc#on Page No.2 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) to restrain the defendants from interfering in their cul#va#ng possession and from aliena#ng the suit land in any manner. 6. Defendants in their wri;en statement did not dispute the possession of the plain#ffs since the #me of their predecessor Lachhman on the suit land but according to them, the possession of Lachhman, the predecessors of the plain#ffs was since aAer the consolida#on in the Village. They further disputed the claim of the plain#ffs to the effect that they had become owner of the suit land by virtue of the order dated 05.02.1988 of the Assistant Collector Ist Grade, Dabwali. It was alleged that Assistant Collector First Grade, Dabwali had no power or jurisdic#on to proceed with the purchase applica#on and as such, the order passed by him was ultra vires to the 1953 Act and so, liable to be ignored. According to them, entries in the jamabandi for the year 1989-90 were rightly recorded by showing the defendants as owners of the suit property. They prayed for dismissal of the suit. 7. Necessary issues were framed. Evidence produced by the par#es was taken on record. 8. The Trial Court determined that, based on Muta#on No. 973 dated 05.05.1988 (Ex.P1), sanc#oned pursuant to the order dated 05.02.1988 of Assistant Collector Ist Class, Dabwali, the plain#ffs had acquired ownership of the suit land. Consequently, the corresponding muta#on entries should have been reflected in the jamabandi for 1989-90. The court further held that the Assistant Collector's order was binding on the defendants and was not illegal. Accordingly, on 04.01.1995, the suit was decreed, declaring the plain#ffs as owners in possession and direc#ng the correc#on of the jamabandi entries for 1989-90, which erroneously recorded the defendants as owners and the plain#ffs as tenants. 9. Before the First Appellate Court, certain documents were produced in addi#onal evidence and based thereon, it was found by the First Appellate Court that order dated 05.02.1988 as passed by the Assistant Page No.3 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) Collector Ist Grade had been stayed by Collector, Sirsa by way of order dated 03.05.1988 and the implementa#on of the said order was also stayed by the Collector on 07.02.1989 and as such, the suit had been wrongly decreed by declaring the plain#ffs as owners of the suit land on the basis of purchase applica#on. It was also found by the First Appellate Court that surplus area case of the land owners had s#ll not been decided and #ll the said case is decided, regarding which ma;er was pending before the High Court, plain#ffs could not have been declared as owners. Consequently, by se7ng aside the judgment dated 04.01.1995 of the trial Court, the First Appellate Court vide its judgment dated 07.05.1988 dismissed the suit, but making it clear that aAer the ma;er is decided by the High Court regarding the surplus case of the owners, plain#ffs will be at liberty to file fresh suit, if so advised. 10. Assailing the afore-said reversal by the First Appellate Court, it is contended by learned counsel for the appellants- plain#ffs before this Court that First Appellate Court wrongly took into considera#on documents Ex.D1 and Ex.D2 produced in the addi#onal evidence and that the well- reasoned judgment of the trial has been wrongly upset. Prayer is made to set aside the judgment of the First Appellate Court and to restore that of the trial Court. 11. It will not be out of place to men#on that during pendency of this appeal before this Court, an applica#on bearing CM No.176-C of 2015 was moved by respondent- defendant Umesh Chand to dispose of the appeal on the basis of the judgment passed by the Division Bench of this Court in an LPA on 29.01.2014, which was taken on record. 12. This Court has considered the submissions of both the sides and have appraised the record carefully. 13. It is not in dispute that predecessor-in-interest of the plain#ffs, namely Lachhman was recorded to be tenant in possession of the suit land, whereas the respondents- defendants are recorded to be land owners of Page No.4 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) the same in the jamabandi for the year 1984-1985. Plain#ffs’ claims to have been become owners of the suit property is based on the order dated 05.02.1988 of Assistant Collector Ist Grade and consequent Muta#on No.973 sanc#oned on 05.05.1988. However, implementa#on of the said order dated 05.02.1988 and the consequent muta#on was stayed by Collector Sirsa vide orders 03.05.1988 and 27.02.1989 Ex.D1 & D2 respec#vely, inasmuch it was found by the Collector that the surplus area case of the land owners was s#ll pending before the Financial Commissioner and #ll the said surplus area case of the land owners is decided, no decision could be taken on the purchase applica#on of the tenant. As such, the Collector directed to consign the file with the liberty to get the appeal revived aAer the decision of the surplus case. 14. It is revealed further that vide order dated 11.12.1990, it was held by the Financial Commissioner, Haryana that aAer the death of the land owner, the surplus area was required to be re-determined in terms of Sec#on 10A(b) of the Punjab Security of the land Tenures Act, 1953. It was also held that such a re-opening shall be aAer invoking the powers under Sec#on 5C of the Act, as the original land-owner had failed to furnish the declara#on under law. 15.1 The above order dated 11.12.1990 passed by the Financial Commissioner, Haryana was assailed by the land owners by filing CWP No.18950 of 1991, which was dismissed by learned Single Bench of this Court on 09.04.1992. Against this order dated 09.04.1992 of the Single Bench, different sets of land owners filed LPA No.18 of 1993 #tled “Mahabir Parshad and another Vs. Financial Commissioner, Haryana”; and LPA No.19 of 1993 #tled “Umesh Chander and another Vs. Financial Commissioner, Haryana and others”. Both these LPAs were disposed of by a Division Bench of this Court on 29.01.2014. Copy of the said order has been placed on record by the respondent as Annexure R.1. 15.2 It will be relevant to reproduce the brief facts, which are Page No.5 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) relevant to the disposal of the present appeal, as have been no#ced by the Division Bench of this Court:- “The brief facts leading to the present appeal are that one Suraj Mal was owner of land situated in Villages Bharokha, Shamsabad, Kharian, Shergarh, Dhanar, Harni and Majukhera. He did not furnish any declara#on as required under the Act before he died on 16.01.1969. The Collector has not passed any order declaring any land of Suraj Mal as surplus before his death or even thereaAer. However, on 02.02.1970, the si7ng tenant on the land owned by Suraj Mal filed an applica#on for purchase of land under Sec#on 18 of the Act. It was asserted that the land-owner has not filed declara#on under the Act and he had more than 60 acres of land on 15.04.1953, therefore, the purchase applica#on should be allowed keeping in view the non-filing of declara#on and his land holding on the appointed date. The Collector passed an order on 16.03.1979 on the declara#on submi;ed by Tara Chand son of Suraj Mal to the effect that on scru#ny of declara#on form submi;ed by the land-owner, the land is less than the area of one unit and, thus, no further proceedings are required to be taken on such declara#on form. Another declara#on was filed by Mahabir Parsad another son of Suraj Mal before the Collector, Sirsa, as he was holding land in Sirsa and Dabwali Sub Divisions. He sought one primary unit and two addi#onal units in view of his land holding measuring 490.11 acres of ‘C’ category on the prescribed date i.e. 24.01.1971 under Sec#on 9 of the Haryana Ceiling on Land Holdings Act, 1972 (for short ‘the Ceiling Act’). On 15.05.1984, the Collector passed an order holding that there is no surplus land in possession of the land-owner. It was also ordered that in case there is any surplus declared under the Act, then that will remain so and will be u#lized as per U#liza#on Scheme. It is thereaAer, the Collector passed an order on 27.01.1987 that proceedings under Sec#on 5-C of the Act should be ini#ated, as the landowners have not got determined their land under the Act. Such order was affirmed on 11.08.1988 by the Commissioner and later by the Financial Commissioner on 11.12.1990, subject ma;er of challenge in the Page No.6 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) writ pe##on. The learned Single Judge has also dismissed the writ pe##on holding that Sec#on 33 of the Ceiling Act has taken care of all situa#ons where proceedings had been concluded, pending or could be commenced under the Act. Therefore, the order passed by the Collector for determina#on of the surplus area aAer taking into considera#on the effect of non-filing of declara#on in terms of Sec#on 5-C of the Act cannot be said to be unjus#fied.” 15.3 Hon'ble Division Bench of this Court, aAer no#cing the factual posi#on and relevant provisions of the Punjab Security of Land Tenure Act, held as under:- “Admi;edly, no order was passed by the Collector declaring the land of Suraj Mal as surplus during his life#me even though he has not furnished any declara#on even in the extended period in terms of Sec#on 5- A of the Act. Sec#on 5-C of the Act contemplates that the prescribed authority may by order direct whole or part of land of any such landowner in excess of ten standard acres shall be deemed to be the surplus area of such landowner and shall be u#lized by the State Government for the purpose men#oned in Sec#on 10-A. Thus the failure of the landowner to submit declara#on require an order of the Collector for the purpose of u#lizing ten addi#onal standard acres as men#oned in Sec#on 10-A i.e. for rese;lement of ejected tenants. The state is competent to u#lize surplus land for the rese;lement of tenant ejected or to be ejected in terms of Sec#on 10-A(a) of the Act. But clause (b) of the said provision excludes the land acquired or where succession has opened for the purpose of rese;lement of tenants. No other disposi#on of land is permi;ed to be excluded while considering the case of land surplus in the hands of landowner. In terms of clause (b) of Sec#on 10-A of the Act, the transfer or other disposi#on of land by an heir by inheritance is protected from the provisions of the Act except in case the land stands u#lized in terms of clause (a) of Sec#on 10-A of the Act. Sec#on 10-B contemplates that the u#liza#on of land either in terms of clause (a) or clause (b) is not affected by the inheritance being opened. Conversely, if inheritance opens before u#liza#on, the issue whether any land is surplus or not, is required to be Page No.7 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) re-determined in the hands of legal heirs. The u#liza#on of surplus land is a condi#on precedent for finality of the order of land being declared surplus, but if land has not been declared surplus, then the ques#on whether the land is surplus in the hands of legal heirs is required to be re-determined. In fact, Sec#on 5-C imposes penalty of ten standard acres only for the purpose of u#liza#on in terms of Sec#on 10-A of the Act. The disposi#on of land by inheritance is protected in terms of Sec#on 10-A of the Act, therefore, the said protec#on would be available even in respect of Sec#on 5-C of the Act before the u#liza#on of the land. In Bhagwan Devi’s case (supra), the land was declared surplus under the Act, but the same was not u#lized when the Ceiling Act came into force. The Supreme Court held that by opera#on of sub-sec#on (3) of Sec#on 12 of the Ceiling Act, the surplus land stood vested in the State. Therefore, the argument that land cannot be declared surplus under the Act was negated. In the present case, there is no order of declaring the land surplus neither on the date when an applica#on for purchase was filed by the tenant nor on the appointed day i.e. 24.01.1971 in terms of Ceiling Act. The land would vest in terms of Sec#on 12(3) of the Ceiling Act only if the same is declared surplus. Since the land was not declared surplus, the same is required to be determined in terms of provisions of the Act in view of Sec#on 33 of the Ceiling Act. Therefore, in terms of Sec#on 10-A(b) of the Act, the inheritance having opened, the surplus area has to be re- determined in the hands of the legal heirs.” 15.4. AAer referring to the relevant case law, Division Bench of this High Court disposed of the two LPAs finally on 29.01.2014 by concluding as under:- “In view of the above, we find that the orders passed by the learned Single Judge and by the Authori#es that the surplus area of the land in the hands of heirs of deceased Suraj Mal is required to be determined aAer applying penalty in terms of Sec#on 5-C of the Act are not sustainable. Consequently, we allow the present appeals by se7ng aside the Page No.8 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) order of the learned Single Judge and the order passed by the Financial Commissioner on 11.12.1990, but reserving the right of the Collector to determine as to whether any land owned by legal heirs of Suraj Mal is surplus or not without reference to penal provisions of Sec#on 5-C of the Act.” 16. It is clear from the afore-said order of the Division Bench of this Court in two LPAs as referred above that order dated 9.4.1992 in CWP No.18950 of 1991 of the learned Single Judge as well as order dated 11.12.1990 of the Financial Commissioner were set aside but at the same #me, Division Bench of this Court reserved the right of the Collector to determine as to whether any land owned by legal heirs of Suraj Mal was surplus or not, without reference to the penal provisions of Sec#on 5-C of the Act. 17. None of the par#es have brought to the no#ce of this Court that whether in compliance of the above order dated 29.01.2014 of the LPA Bench of this Court, the Collector has determined as to whether the land owned by legal heirs of Suraj Mal was surplus or not. Till the said order of this Court dated 29.01.2014 is complied with and #ll the Collector determines the surplus area in the hands of the legal heirs of the land owners, without reference to the penal provisions of Sec#on 5-C of the Punjab Security of Land Tenure Act, 1953, no decision on the purchase applica#on of the plain#ffs- appellants can be taken. 18. In view of the afore-said discussion, the present appeal is hereby dismissed, by maintaining the order of the First Appellate Court and by holding that #ll the surplus area case of the land owners is decided by the Collector in terms of order dated 29.01.2014 of this High Court passed in LPA Nos.18 and 19 of 1993, no declara#on regarding ownership of the plain#ffs – appellants can be granted on the basis of the purchase applica#on moved by them. The appeals stand disposed of accordingly. 19. The appeals stand disposed of accordingly. 19. It is made clear that aAer the decision of the Collector Page No.9 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh RSA No.1550 of 1998 (O&M) regarding the surplus area case of the land owners, the appellants-plain#ffs will be at liberty to avail the remedy available to them in accordance with law, in case any cause of ac#on survives in their favour. April 02, 2025 (DEEPAK GUPTA ) renu JUDGE Whether Speaking/reasoned Yes/No Whether Reportable Yes/No Page No.10 out of 10 pages RENU 2025.04.03 11:11 I attest to the accuracy and integrity of this document Chandigarh