GOPAL SINGH (DEAD) BY LRS. versus SWARAN SINGH & ORS. on 7 December 2018

1. Leave granted.

2. This appeal is filed by the legal heirs of the deceased defendantno.5 in the suit, aggrieved by the judgment and order dated 16.02.2018passed by the High Court of Punjab & Haryana at Chandigarh in RegularSecond Appeal No.1163 of 1991 (O&M). Respondent nos.1 to 4 hereinwere the plaintiffs in Suit No.496 of 1985 filed before the Sub-Judge 1[st]Class, Sultanpur Lodhi, District Kapurthala in the State of Punjab. Inthe said suit following reliefs were claimed by them :

“Suit for declaration that they are absolute owners in possessionbeing bonafide purchasers for consideration and without notice ofland measuring 82 kanals 3 marlas bearing khasra nos.54/22min(4-0), 61//2 (8-0), 1min (4-18), 9(10-4), 54//22min (4-0), 61//min(4-0), 55//16 (8-0), 17 (7-7), 54//19min (4-0), 20 (8-0), 21 (8-0),54///19min (4-0), 25/25 (6-17), and 60/5/2 (0-17), total 82 kanals 3marlas, situated in village Kamalpur Patti, Tehsil Sultanpur Lodhi,District Kapurthala as per Jamabandi for the year 1981-82 andthe order of learned Chief Sales Commissioner, Kapurthala dated28.3.1985 vide which the sale in favour of Mohan Singh son ofAlladatta of village Mothawala, Tehsil Sultanpur Lodhi, DistrictKapurthala dated 23.12.1964 qua the suit land has been cancelledand allotment of this land in favour of Gopal Singh defendant no.5has been considered right is highly illegal, arbitrary, unwarrantedwithout jurisdiction, against the provisions of law and is thusunsustainable and not binding on the rights and title of the plaintiffsover the suit land with the consequent relief of permanent injunctionrestraining the defendants from reauctioning the suit land oralienating it in any other manners and further restraining thedefendants from interfering in the peaceful possession of theplaintiffs in the suit land in any manner.”

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A3. The suit schedule property was auctioned in the restricted auctionunder the provisions of The Punjab Package Deal Properties (Disposal)Act 1976 [for short ‘the Act’]. It was originally sold to one MohanSingh, son of Aladitta, resident of Kamalpur in the auction held on23.12.1964. There was a restriction on transfer which was held pursuantto an auction, not to alienate the suit property till the final realisation ofBthe loan amount taken by the allottee for purchase of the land or till theexpiry of 10 years which is later. On the ground that the said MohanSingh has breached the condition, proceedings were initiated forresumption of the land. Initial order for resumption passed by the authoritywas set aside in the writ petition by the High Court. Thereafter, furtherCorder was passed by the Deputy Commissioner-cum-Chief SalesCommissioner, Kapurthala on 28.03.1985. The aforesaid order waspassed by recording a finding that cancellation of the auction was properand further confirmed the allotment made in favour of the appellantsherein.

D4. The said order dated 28.03.1985 passed by the competentauthority under the provisions of the Act and the rules framed thereunderhas become final.

5. The trial court, by recording the finding that respondent-plaintiffsare bonafide purchasers, has decreed the suit by declaring the orderEdated 28.03.1985 passed by the competent authority under the provisionsof the Act as null and void and granted consequential relief of injunctionrestraining the defendants from dispossessing the plaintiffs from the suitland.

6. Aggrieved by the judgment and decree of the trial court datedF25.01.1989, the appellant herein who is defendant no.5 has filed CivilAppeal No.57 of 1989 and defendant nos.1 to 4 which are authorities ofthe State also filed Civil Appeal No.59 of 1989. By the common judgmentand decree dated 18.01.1991, the first appellate court allowed the appealsby setting aside the judgment and order of the trial court mainly on theground that in view of the provision under Section 16 of the Act, CivilGCourt has no jurisdiction to try the suit. Further, it was also held by theappellate court that the suit is liable to be dismissed because no notice,as required under Section 80 of the Code of Civil Procedure (CPC) wasgiven before filing the suit and no application was filed to dispense withthe requirement of giving notice under Section 80(2).

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7. Aggrieved by the common judgment and decree passed in thesaid civil appeals by the first appellate court, the respondent-plaintiffshave filed Second Appeal Nos.1163 and 1164 of 1991. Said appeals areallowed by the High Court of Punjab & Haryana at Chandigarh byjudgment and decree dated 16.02.2018. Thus, the judgment and decreepassed by the trial court were restored.

8. We have heard Mr. Vikas Mahajan, learned counsel for theappellants and Mr. Neeraj Jain, learned senior counsel for the respondentswho are on caveat and also perused the written submissions submittedon behalf of the parties.

9. In this appeal, it is the case of the appellants that against theinitial cancellation of sale vide order dated 17.06.1975 the vendees ofthe original transferee have approached the High Court in Civil WritPetition No.5210 of 1975 and in view of the judgment dated 09.10.1979,after hearing all the necessary parties, order dated 28.03.1985 was passedby the competent authority, cancelling the sale and said order has becomefinal and not challenged before the revenue authorities. It is the case ofthe appellants that the validity of the order dated 28.03.1985 cannot bethe subject matter of challenge before the civil court in view of the barunder Section 16 of the Act. It is further submitted that in view of theopportunity provided by the authorities judgment relied on by the HighCourt cannot be applied having regard to the facts and circumstances.It is submitted that in any event the finding recorded by the first appellatecourt that suit is not maintainable for not issuing notice under Section 80of the CPC is not interfered with and without recording any findingSecond Appeal is allowed.

10. On the other hand, it is the case of the respondent-plaintiffsthat respondent-plaintiffs are bonafide purchasers of the suit land for avaluable consideration and in similar cases this Court has dismissed theSpecial Leave Petitions, as such, there is no ground to interfere with thesame. It is further submitted that in any event, in view of Section 41 ofthe Transfer of Property Act 1882, Civil Court is competent to entertainthe suit for grant of relief as prayed for. It is also pleaded that defect inthe prayer, if any, for quashing the order dated 28.03.1985, may notcome in the way of the respondent-plaintiffs for seeking relief ofdeclaration of their title which is to be protected in view of the provisionunder Section 41 of the Transfer of Property Act 1882.

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1136 SUPREME COURT REPORTS [2018] 14 S.C.R.

A11. Having heard learned counsel on both sides, we have perusedthe impugned judgment and the judgments of the lower appellate courtand the trial court.

12. It is not in dispute that originally land was put to restrictedauction to sell the land under the provisions of the Act and the RulesBframed thereunder. There are restrictions on the alienation of the landas per the original transfer. At first instance when the order of cancellationwas passed, matter was carried to High Court and the High Court hasdisposed of the petition by directing the authorities not to take steps foreviction of the petitioners therein unless they are provided opportunitybefore passing appropriate order. After order was passed by the HighCCourt, order dated 28.03.1985 was passed cancelling the transfer andfurther allotment made in favour of the appellants herein was confirmed.Section 16 of the Act reads as under :

“16. Bar of jurisdiction and finality of orders D(1) Save as otherwise expressly provided in this Act, every ordermade by any officer or authority under this Act shall be final andno Civil Court shall have jurisdiction to entertain any suit orproceeding, in respect of any matter which the State Government,or any officer or authority apopinted under this Act is empoweredby or under this Act to determine, and no injunction shall be grantedEby any Court or other authority in respect of any action taken orto be taken in pursuance of any power conferred by or under thisAct.

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(2) Nothing in the Punjab Public Premises and Land (Evictionand Rent Recovery) Act, 1973, shall apply to package dealFproperty.”

13. From a reading of the aforesaid provision, it is clear that everyorder made by any officer or authority under the said Act is final and noCivil Court shall have jurisdiction to entertain any suit or proceeding andno injunction shall be granted by any court or other authority in respectGof any action taken under provisions of the Act. The first appellatecourt, by applying the aforesaid provision, has clearly recorded a findingthat the suit is barred and further it was also held that suit is notmaintainable against the State and its authorities, who are defendantnos.1 to 4, without issuing notice under Section 80 of CPC. There isalso nothing on record seeking leave from the court for dispensing withH

issuance of notice as provided under Section 80(2) of the CPC. The saidaspect is not at all dealt by the High Court. So far as the bar of the suitunder Section 16 is concerned, the High Court referred to Special LeavePetition(C) No.26714 of 2015, but, it appears that the said petition isdismissed for non-prosecution. High Court also referred to certain otherearlier judgments to support a finding on the validity of the order dated28.03.1985. But we are of the view that when the suit itself is barred, itis not open for the civil court to record any finding on the validity of theorder dated 28.03.1985. Even the judgment of the Full Bench of theHigh Court in the case of State of Haryana & Ors. v. Vinod Kumar& Ors.[1]cannot be applied unless it is held that the order passed by theprimary authority is a nullity. As we are of the view that the respondent-plaintiffs had an opportunity before the authority and when the said orderhas become final, in view of the bar under Section 16 of the Act, theHigh Court has committed error in recording finding on the validity ofthe order dated 28.03.1985. Further, as rightly contended by counsel forthe appellants that the appellate court also has not disturbed the findingof the lower appellate court on issue of notice as contemplated underSection 80 of the CPC.

14. For the aforesaid reasons we allow this appeal and set asidethe judgment and order dated 16.02.2018 passed in R.S.A.No.1163 of1991 and consequently the Civil Suit No.496 of 1985 stands dismissed,with no order as to costs.

Nidhi Jain

Appeal allowed.

11986 (1) PLR 222

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