AT CHANDIGARH v. State of Haryana & Ors.

Present: Shri S.S.Salar, Advocate for the appellants. ....

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.13201-C of 2009 the application is allowed and delay of 73 days in refiling of the appeal is condoned. C.M.No.13202-C of 2009 Allowed as prayed for. R.S.A.No.4374 of 2009 This is a regular second appeal by the plaintiffs. In the suit filed by them for declaration, they had pleaded themselves to be in possession of the suit property as tenants since 1970. It was averred that R.S.A.No.4374 of 2009 (O&M) -2- .... the possession of defendant no.3 over the suit property was in excess of the prescribed area under the provisions of the Haryana Ceiling on Land Holdings Act,1972 and the total land as on 21.1.1971 was 1647 kanals and 12 marlas and after leaving the permissible area with defendant no.3, land measuring 1289 kanals and 7 marlas was declared surplus without giving any notice to the tenants, i.e., the plaintiffs. It was pleaded that the plaintiffs were unaware of any proceedings regarding declaration of surplus area and no area declaring the land surplus could have been passed without hearing them as they were tenants. Later on, persons, who were detailed in paragraph 4 of the plaint and arrayed as defendant nos. 4, 5, 8, 25, 26, 27 and 29 were allotted land from the area declared as surplus, but despite this allotment, the possession continued with the plaintiffs. The order dated

12.7.1980 passed by the Prescribed Authority was challenged by one Balkishan-tenant through C.W.P. No.4201 of 1980 and the High Court, vide its order dated 2.3.1994 set aside the said order and as a consequence, the area which was declared surplus reverted back to the original owner and the allotments made out of that land in favour of the allottees stood quashed. It was thus, pleaded that the plaintiffs were in possession of the suit land and were entitled to protect their possession. It was averred that the allottees of the land further alienated the same in favour of persons arrayed as defendant nos. 18, 20, 21, 22 and 23 vide registered sale deed dated

9.1.1996 and the legal representatives of allottee-Jai Ram, who were impleaded as defendant nos. 10 to 17, had also alienated the land in favour the aforementioned defendants by a sale deed dated 9.1.1996. Similarly, R.S.A.No.4374 of 2009 (O&M) -3- .... another allottee, namely, Mange Ram also sold the land in favour of defendant nos. 18, 20,21,22 and 23. A decree was also suffered by defendant no.25 regarding the allotted land in favour of defendant no.24 on

2.1.1993. These sale deeds and the decree were also sought to be declared as null & void. Defendant nos. 1 & 2, in their written statement, contested the suit and pleaded that as per order dated 2.3.1994, the Prescribed Authority had determined the surplus area in accordance with law and after the declaration of the area as surplus, the land was allotted to the rightful claimants and the allottees were put in physical possession thereof. They denied that there was any necessity to issue notice to the plaintiffs. They pleaded that the land had been properly utilised and the allottees wer ein possession thereof. They, thus, prayed for dismissal of the suit. Defendant No.3, who was the original landowner, pleaded that Murti Thakur Ji has not been impleaded as a party to the suit and that he is simply a Mahant. On merits, he pleaded that the suit land belongs to a religious institution and that he never remained owner in possession thereof and being the Mahant, he was only to manage the affairs. It was further pleaded that order dated 12.7.1980 was also bad because no notice was given to him and he had no knowledge of the proceedings before the Prescribed Authority. Defendant nos. 6 & 7, 18 to 24 and 26 to 28 had also filed written statements and denied the allegations made in the plaint and also refuted the possession of the plaintiffs over the suit property. They also R.S.A.No.4374 of 2009 (O&M) -4- .... defended the allotment of land in their favour. The parties went to trial on a number of issues and both the Courts below, on appraisal of evidence, dismissed the suit as well as the appeal of the plaintiffs. In the instant appeal, learned counsel for the plaintiffs- appellants has contended that the findings recorded by the Courts below are perverse and are liable tobe set aside. He further contended that the plaintiffs being in possession of the suit property, were entitled toi protect their possession. I have considered the contentions of the learned counsel for the plaintiffs and have perused the impugned judgments. The plaintiffs failed to substantiate their plea of possession by any revenue record. Their entire suit and tone & tenor of the pleadings showed that they were in possession of the land in dispute, but they failed to prove the same. Except for the oral evidence, no material was placed on record from where it could be said conclusively that they were in possession of the suit land. The proceedings emanating from the order of the Prescribed Authority apparently have been set aside by the orders of this Court in C.W.P.No.4201 of 1980 and the matter was remanded back to the Prescribed Authority for re-determination of the surplus area of defendant no.3 after hearing the petitioner, who had made challenge in that petition and his successors-in-interest. In any eventuality, these proceedings and orders are of no help to the plaintiffs in view of the concurrent and consistent findings of fact recorded by the Courts below that they were not R.S.A.No.4374 of 2009 (O&M) -5- .... in possession of the suit land. They have also failed to substantiate the plea of their being tenants over the suit land. As observed earlier, no revenue record has been produced from where it could be established that they were tenants in possession over the suit land. There is, thus, no ground to interfere with the concurrent findings recorded by the Courts below. Dismissed. May 14,2010 “SCM” ( Mahesh Grover ) Judge