JUDGMENT
A.L. Bahri, J.
1. This Regular Second Appeal has been filed by Rattan Singh plaintiff. His suit was decreed be the trial Court but on appeal by the defendants, the same was dismissed.
2. Facts in brief :
Dalel Singh, father of Rattan Singh plaintiff, left land, plots and houses in Pakistan and in lieu thereof, he was allotted land in India after partition of the country. Plot No. 10 in village Fatehpur Khurd was allotted to him. The total area of this plot was 2 Kanals-16 Marlas-3 Sarsahis. Out of it, 1 Kanal 10 Marlas was allotted to Dalel Singh in February, 1956. Exhibit ‘P 11’ is the Sanad issued in his favour. On April 21, 1953, 4 Marks 3 Sarsahis out of the said plot was allotted vide Exhibit ‘P-8’ but no Sanad was issued. Subsequently, 1 Kanal 2 Marlas of the said plot was allotted vide Exhibit ‘P-9’ and proprietary rights were conferred vide Exhibit ‘P-10’. Banta Singh and Darbara Singh defendants filed a suit claiming a passage from the disputed plot which was with the plaintiff Rattan Singh to their houses and plots. The said suit ended in a compromise Exhibit ‘P-4’. On payment of Rs. 257/- a passage 6 feet 9 inches wide was allowed to Banta Singh and Darbara Singh. This was in February, 1968 Thereafter Rattan Singh plaintiff constructed boundary wall, mangers, gate, hand-pump and rooms towards his side of the plot. It may be noticed here that some excess area of the plot was found with him and he was allowed to purchase the same on payment of Rs. 325/-; and the possession was delivered to him after recording necessary report. Banta Singh and Darbara Singh defendants, after obtaining passage under the compromise as aforesaid, still raised claim to the remaining passage whereas the plaintiff wanted confirmation of the sale of the plot (remaining area), as aforesaid, in his favour. On February 23, 1976, the Tehsildar-cum-Managing Officer confirmed the sale in favour of Rattan Singh. He also ordered refund of some amount which had earlier been deposited by Banta Singh and Darbara Singh towards the excess area claimed by them as passage Both Banta Singh and Darbara Singh approached the Assistant Settlement Commissioner by way of appeal, which was ultimately decided by the Sales Commissioner on April 24, 1978, vide Exhibit ‘D 1’. In this order the Sales Commissioner allotted 4 Karams wide passage to Banta Singh and Darbara Singh. Rattan Singh, present plaintiff, approached the Chief Commissioner in revision, which was dismissed on February 19, 1980 After the Sales Commissioner had passed the order, the Tehsildar-cum-Managing Officer issued a notice calling upon Rattan Singh plaintiff to vacate unauthorised occupation of the alleged passage which was found in excess with him on demarcation. This led plaintiff Rattan Singh to file the present suit for permanent injunction restraining Banta Singh and Darbara Singh, the private respondents, as well as the Tehsildar (Revenue)-cum-Tehsildar (Sales) and the State of Punjab through the Deputy Commissioner (Chief Sales Commissioner) from interfering by any means in the lawful possession of the plaintiff over the Eastern side of plot No. 10, which was described in the site plain as ABLKJ and also not to demolish any wall, gate, manger, hand pump, Khunda, Nali etc. constructed by the plaintiff. Although the plaintiff in the suit had not mentioned about the order dated April 24, 1978 of the Sales Commissioner and the order dated February 19, 1980 of the Chief Sales Com-missioner, the private defendants aforesaid while contesting the suit referred to the order dated April 24,1978. On different grounds the suit was contested. No written statement was filed by the official respondents The trial Court proceeded on the following issue :–
“(1) Whether the plaintiff is entitled to the injunction prayed for? OPP
(2) Whether the jurisdiction of this Court is barred as alleged? OPD
(3) Whether the plaintiff is estopped from suing as alleged ? OPD
(4) Whether the suit is bad for non-joinder of Lal Singh, as alleged ? OPD
(5) Whether the suit is maintainable in the present form ? OPD
(6) Whether notice under Section 80 of the Code of Civil Procedure was served on the State ? If not to what effect ? O. P. Parties.
(7) Whether site plan produced by tie plaintiff is correct? If not to what effect ? O P. Parties.
(8) Whether the suit is properly valued for purposes of Court fee and jurisdiction ? O.P.D.
(9) Whether Chain Singh has authority to sue on behalf of the plaintiff ? O P.P.
(10) Whether the site in dispute is the ownership and in possession of the plaintiff? O PP.
(11) Relief,”
3. While decreeing the suit the trial Court concluded that the decision in the previous suit was binding on the patties whereby a compromise was effected and 6 feet 9 inches wide path was allowed to the defendants. On appeal, it was observed that the order of the Managing Officer dated February 23, (sic). Confirming tie sale of the excess area of the plot in favour of Rattan Singh plaintiff was set aside by the Sales Commissioner vide order dated April 24, 1978 Exhibit ‘Dl’. The excess area being a passage recorded, could not be allotted to anybody. The Tehsildar-cum Managing Officer bad the jurisdiction to issue notice which was being challenged in the suit.
4. I have heard the learned counsel for the parties and have also perused the records During arguments, the counsel for the appellant has produced certified copy of the order dated February 19, 1980, passed be the Chief Sales Commissioner The same is admitted into evidence as Exhibit ‘C-1’ as necessity for the same has been felt for just decision of the case.
5. On behalf of the respondents it has been argued that Civil Court had no jurisdiction to try tie suit in view of Section 16 of the Punjab Package Deal Properties (Disposal) Act, 1976 (hereinafter called the Act’), In this context, it has further been argued that the matter has been decided by the authorities under the Act holding that, being a passage the same could not be transferred to the plaintiff-appellant, and such orders are final. In order to appreciate this argument, it is necessary to refer to the provisions of the Act as well as to the nature of the orders passed including the notice issued under Section 7 of the Act calling upon the plaintiff to demolish the boundary wall on alleged encroachment of the passage. Sections 7 and 16 of the Act read as under :–
“7. Power to very or cancel leases or transfer or any package deal property.-(1) Notwithstanding anything contained in any other law for the time being in force but subject to any rules that may be made under this Act. the Tehsildar (Sales) or Naib Tehsildar (Sales) may cancel any transfer or terminate any lease or amend the terms or any transfer or lease under which any package deal property is held or occupied by a person:
Provided that no transfer shall be cancelled, lease terminated or the terms of any transfer or lease amended unless such an action is permissible under the terms and conditions of the instrument of transfer or lease, as the case may be, and unless an opportunity of showing cause has been given to the transferee or lessee, as the case may be.
(2) Where any person-
(a) has ceased to be entitled to the possession of any package deal property by reason of any action taken under Sub-section (1); or
(b) is, in the opinion of the Tehsildar (Sales) or Naib Tehsildar (Sales) otherwise in unauthorised possession of any package deal property;
he shall, after his been given a reasonable opportunity of showing cause against his eviction from such package dial property, surrender possession of the properly on demand being made in this behalf by the Tehsildar (Sales) or Naib Tehsildar (Sales) or by any other person duly authorised by the Tehsildar (Sales) or Naib-Tehsildar (Sales), as the case may be.
(3) If any person fails to surrender possession of any package deal property on demand made under Sub-section (2), the Tehsildar (Sales) or Naib-Tehsildar (Sales) may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to be used such force as may be necessary ”
“16. Bar of jurisdiction and finality of orders.–(1) Save as otherwise expressly provided in this Act, every order made by any officer or a authority under this Act shall be final and no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the State Government r(sic) any officer or authority appointed under this Act is empowered by or under this Act to determine; and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
2. Nothing in the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, shall apply to package deal property.”
6. On behalf of the appellant it has been argued that the notice of demolition purporting to be issued under Section 7(2) of the Act is illegal and without jurisdiction as no such notice could be issued, firstly, in the absence of any order of cancellation of allotment being passed under Sub section (1) of Section 7 in respect of any package deal property and, secondly, the authorities under the Act had no power to issue such notice in respect of encroachment on passages. In other words passages did not form part of the package deal property. Considering from both angles as above, I find that there is merit in the contention of counsel for the appellant Through-out the case of the department and the plaintiff Rattan Singh had been that plot No. 10 which formed part of the package deal property was allotted to Dalel Singh and his son Rattan Singh in portions as stated above. Finding that the allotment was in excess, Rattan Singh was allowed to purchase the excess portion of the said plot. In this respect, finally such an order was passed on February 23, 1976, by the Tehsildar (Sales). This order was set aside by the Sales Commissioner vide his order dated April 24, 1978, copy Exhibit ‘D-1’. At this stage, it may be stated that the alleged appeal by Banta Singh was not moved before the Sales Commissioner. It was filed before the Assistant Settlement Commissioner. Be that as it may, the Sales Commissioner either could confirm the order of the Tehsildar (Sales) or set it aside He could not order for allowing 4 Karams wide passage to be given to Banta Singh and another. At the cost of repetition, it may be stated that the authorities under the Act had had no power or jurisdiction in respect of passages. In case Rattan Singh plaintiff on his own had allowed by compromise in the previous suit portion of the property allotted to him to be used as passage by Banta Singh and another, that order of the Civil Court was not under scrutiny before the Sales Commissioner with respect to sufficiency of passage. The Sales Commissioner obviously had gone beyond his powers under the Act to allow 4 Karams wide passage to Banta Singh and another in the order Exhibit ‘D-1’. At this stage, reference is being made to copy of the order Exhibit ‘C-1’ passed by the Chief Sales Commissioner on the revision petition filed by Rattan Singh against the order Exhibit ‘D-1’. It is necessary to reproduce two extracts from the order on which argument has been addressed by counsel for both the parties. These are as under:–
“(I) The dispute was settled by the Civil Court and a compromise was effected accordingly. The applicant alleges that he does not have any excess land with him which could be converted into path to help the respondent. Vide order under ; review Sub Divisional Officer (C)-cum-Sales Commissioner had already allotted to the applicant a passage as requested by him before Sales Commissioner.”
‘(II) 3. After considering the views expressed by both the parties and after going through the record I find that a compromise has been arrived at by both the parties and has already been given effect to and the passage has already been correctly provided. Therefore no useful purpose will be served by re opening this case. I, therefore, find no force in this revision petition which is therefore dismissed.”
7. While referring to extract I, as reproduced above from part 1 of the order, counsel for the respondents has argued that it was stand of Rattan Singh that passage was rightly given by Sub Divisional Officer (C) cum-Sales Commissioner, which is not factually correct If the aforesaid extract is read with the statement of facts recorded earlier, it makes it clear that the passage was allowed to Banta Singh and another in a compromise decree which was implemented and thereafter there was no excess land with Rattan Singh which could be converted into a passage This stand of Rattan Singh was further accepted in the concluding paragraph 3 of the order as reproduced above. It was noticed that compromise had been arrived at between the parties which had been given effect to and that the passage had already been correctly provided After stating so, the Chief Sales Commissioner stated that no useful purpose was to be served by re-opening the case; meaning thereby the passage given in a compromise in a suit was accepted as such and the case was not to be further re opened However, it was the concluding line of the order whereby re dismissed the revision petition that has created further problem. In substance after accepting the position given by compromise decree passed by the Civil Court, the Chief Sales Commissioner was to set aside the order appealed against. However, the revision stood dismissed as noticed above.
8. In the compromise order Exhibit ‘P4’ which is between the parties including the officials of the department, a passage 6 feet 9 inches wide was allowed to Banta Singh and another. The Sales Commissioner, as already stated above, decided to give 4 Karams wide passage in his order Exhibit ‘D-1’ to Banta Singh. Such an order cannot be said to be an order passed under the Act which could ultimately be implemented under Section 7 of the Act. Since such an order was not passed under any provision of the Act, jurisdiction of the Civil Court challenging the portion of the order was not barred under Section 16 of the Act, referred to above.
9. Notice under Section 7(2) of the Act could be issued only in respect of property forming part of the package deal property and that too after allotment of that property was cancelled by Tehsildar (Sales) or Naib-Tehsildar (Sales), as mentioned in Sub-section (1) of Section 7. In the present case, no order was passed proceedings were initiated by Tehsildar (Sales) or Naib-Tehsildar (Sales) for cancellation of any excess allotment made in favour of Rattan Singh plaintiff. The notice issued by Tehsildar (Sales) or Naib-Tehsildar (Sales) under Sub-section (2) of Section 7 of the Act to the plaintiff to demolish his boundary wall and other superstructure is, therefore, without jurisdiction.
10. Banta Singh and another are also estopped by their conduct from disturbing the right of the plaintiff over the disputed plot No. 10. In the civil suit, as already noticed above, Banta Singh and another were allowed only a passage and they are bound by the said compromise. No particulars or evidence of fraud being played for passing of the compromise decree had been produced which could be relied upon. The Civil Court decree is binding on the parties. Having taken benefit under the compromise decree of path 6 feet 9 inches wide and Rattan Singh having constructed the boundary wall etc thereafter on the remaining portion of the property, Banta Singh and Darbara Singh are now estopped from challenging the compromise decree.
11. For the reasons recorded above, this appeal is allowed with costs, the judgment and decree of the lower appellate Court are set aside and that of the trial Court are restored.