RSA No.2394/1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.2394/1986
DATE OF DECISION: 21 .7.2008
Dr. Dhian Singh
....Appellant through
Mr. S.K. Singla, Advocate
Versus
State of Punjab and Another
.....Respondent through
Mr. Amit Chaudhary, AAG, Punjab
CORAM: HON’BLE MR. JUSTICE JASWANT SINGH
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?
.-.-.-.
JASWANT SINGH, J
Present Regular second appeal has been filed by the plaintiff-
appellant against the judgment and decree dated 10.2.1986 passed by
Additional District Judge, Patiala, whereby the appeal filed by him against
the judgment and decree dated 18.9.1984 passed by Sub Judge, III Class,
Patiala dismissing the suit of the plaintiff, was dismissed.
Broadly, the facts are that the plaintiff-appellant filed a suit for
declaration to the effect that he is owner of property No.EP-381, situated at
Samana, District Patiala, the boundaries whereof are described in the head
note of the plaint. It was further averred that conveyance deed (sale deed)
Ex.P1/A had been executed in favour of the plaintiff by the Rehabilitation
Department, Punjab and the boundaries have been wrongly mentioned in the
said conveyance deed. Plaintiff moved applications dated 23.7.1977 and
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18.8.1978 for correction of the boundaries in the said conveyance deed.
Rehabilitation Authorities called the report of the Inspector regarding
property in dispute but the plaintiff was not satisfied with the appointment
of the Inspector and he applied to the Managing Officer for appointment of
Tehsildar (Sales), Rehabilitation Department for the said purpose. In this
regard, further reminders were also issued but of no avail, therefore, present
suit for declaration was filed to the effect that the boundaries in the said
conveyance deed have been wrongly mentioned as towards the East, open
space has been mentioned whereas on the eastern side, there is property
No.E.P. 380 of Partap Singh. Defendants despite due notice failed to appear
and were proceeded ex parte.
After hearing the arguments of the plaintiff and the law point
raised, the learned trial Court found that the present case pertained to the
rectification of the boundaries as originally mentioned in the conveyance
deed and, therefore, the remedy of correction of the same was available to
him under Section 25(2) of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (hereinafter to be referred as “1954 Act”).
Learned Trial Court further found that in view of Section 36 of 1954 Act,
the jurisdiction of the Civil Court to entertain any suit was barred and
accordingly, it was observed that the plaintiff should approach the
Rehabilitation Department for rectification of the boundaries.
Aggrieved against the judgment of the trial Court, an appeal
was preferred before the learned Additional District Judge, Patiala by the
plaintiff but the same was dismissed vide judgment and decree dated
10.2.1986.
It is, in these circumstances, that the present regular second
appeal has been filed by the plaintiff-appellant.
Present appeal was admitted vide order dated 16.2.1987.
Following substantial questions of law have been framed in the present
regular second appeal:
i) As to whether the suit can be said to be barred by virtue of
Section 36 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 in the absence of remedy under
the said Act for the relief claimed in the suit?
ii) As to whether the Civil Court has failed to exercise the
RSA No.2394/1986 -3-jurisdiction vested in it?
Iii) As to whether the judgments and decree under appeal are
the result of misreading the relief prayed for in the suit and
further misinterpreting the provisions of the Act and being
so are thus unsustainable in law?
iv) As to whether the relief claimed in the suit can be granted
under the Displaced Persons ( Compensation and
Rehabilitation) Act, 1954?
Learned counsel for the plaintiff-appellant argued that in the
facts of the present case, no remedy was available to the plaintiff under
1954 Act and therefore, Section 36 of 1954 Act was not applicable and
hence the suit was maintainable. To support his arguments, learned counsel
for the appellant has relied upon the judgment of Delhi High Court
rendered in Tek Chand Chitkaria v. Union of India, 1968, PLR, Volume
LXX, 2002, judgment, Vishnu Dass and another v. Smt Jaisi Bai Ude
Bhan, AIR 1972, P & H, 811.
On the other hand, learned counsel for the respondent-State has
argued that the suit land was purchased by the plaintiff in open auction from
the Rehabilitation Department and accordingly the conveyance deed had
been executed and since the primary and sole relief claimed is for correction
of the boundaries in the said conveyance deed, no suit is maintainable
before a Civil court in view of the bar provided under Section 36 of 1954
Act as there is a sufficient remedy available to the plaintiff under Section 25
(2) of 1954 Act.
I have heard learned counsel for the parties.
Before adverting to the arguments, it is necessary to reproduce
Section 25 (2) and 36 of 1954 Act, which is as under:
25. Review and amendment of orders- (1) xxx
xxxxxx xxx xx
(2) Clerical or arithmetical mistakes in order passed by an
officer or authority under this Act or errors arising thereto from
any accidental slip or omission may, at any time be corrected by
such officer or authority or the successor-in-office of such officer
or authority.
36. Bar of jurisdiction- Save as otherwiseexpressly
RSA No.2394/1986 -4-provided in this Act, no civil Court shall have jurisdiction to
entertain any suit or proceedings in respect of any matter which
the Central Government or 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.
A perusal of the record reveals that the suit land was sold to the
plaintiff-appellant by the Rehabilitation Department for a sale consideration
of Rs.9150/- vide conveyance deed No.678 dated 4.8.1997 in a open
auction. Sale deed was written on 30.6.1977 and was duly registered on
4.8.1977 Ex.P1/A. It appears that the plaintiff had sought rectification of
the same before and after the execution of the conveyance deed. It is not in
dispute that the Rehabilitation Authorities called the report of the Inspector
and Managing Officer regarding the boundaries of the property in dispute
on one of the applications moved by the plaintiff, but he was not satisfied
with the appointment of the Inspector and, therefore, he applied for
appointment of Tehsildar, Rehabilitation Department for the said purpose.
Admittedly, reminders had been sent in January 1982 before filing of the
present suit. Both the learned courts below, keeping in view of the facts of
the case and nature of the relief claimed by the petitioner, recorded a finding
that the present case pertains to the rectification of the boundaries as
originally mentioned in the aforesaid conveyance deed and, therefore,
keeping in view the bar under Section 36 of 1954 Act, learned courts below
refused to entertain the suit and further recorded the plaintiff to avail his
remedy under Section 25(2) of 1954 Act.
In Vishnu Dass’s case (supra), the question was as to whether
the land left by the defendant in Pakistan was mortgaged by him to the
plaintiff and whether on that basis, the plaintiff was entitled to joint
possession of land allotted to the defendant in India. It was held that the
matter was not covered under any of the Sections of 1954 Act and,
therefore, a civil suit for that matter was not barred under 1954 Act and
hence maintainable in a Civil Court.
The facts in the present case are entirely different. The land
was sold by the Rehabilitation Department to the plaintiff and a conveyance
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deed executed. The plaintiff not being satisfied with the boundaries drawn
in the sale deed has clear cut remedy under Section 25(2) of 1954 Act for
correction of the same, therefore, the cited judgment is of no assistance to
the petitioner.
The judgment of the Delhi High Court in Tek Chand Chitkaria’s
case (supra) is not applicable to the facts of the present case due to the
reason that in the reported case suit for possession of a cattle shed and
boundary attached thereto forming part of khasra nos. 160,161,163, was
filed on the ground that representation of the plaintiff Tek Chand Chitkaria
regarding non-delivery of possession was rejected by Regional Settlement
Commissioner on 21.1.1958. Appeal, revision and review filed against the
same under the 1954 Act were also dismissed. Even the writ petition
challenging all the said orders was dismissed by the Hon’ble High Court. It
is in those circumstances, the civil suit was filed. The Hon’ble Delhi High
Court in paragraph 23 of the judgment has also discussed the point of bar of
jurisdiction under section 36 of the 1954 Act and has held that in the facts
of the case there is no provision in the Act, which empowers the Central
Government or any officer under the said Act to determine the matter in
controversy.
In the present case to resolve the controversy in the suit regarding
correction of boundaries, there is a specific provision in Section 25(2) of the
1954 Act. Therefore, keeping in view the provisions of Section 36 of the
1954 Act, jurisdiction of the Civil Court is barred. Moreover, liberty was
granted to the plaintiff-appellant by the trial court to approach higher
officers of the Rehabilitation Department in case of any grievance qua
rectification of the boundaries of the suit land, which he had purchased from
the Rehabilitation Department itself. However, the plaintiff-appellant has
not taken recourse to that option. Therefore, the judgment of the Hon’ble
Delhi High Court is not applicable to the facts of the present case. Hence,
the submission of the plaintiff-appellant that the civil suit under Section 36
is not barred in the absence of any remedy under the Act, is not tenable as
there is a specific remedy available under Section 25(2) of the 1954 Act for
correction of the boundaries.
In view of the findings recorded on point no.1, learned trial Court has
rightly declined to interfere in the matter and has granted liberty to the
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plaintiff to approach the authorities under the 1954 Act.
For the reasons recorded above, I do not find any ground to interfere
in the present Regular Second Appeal as no substantial question of law is
involved. Hence the same is dismissed with no order as to costs.
21.7.2008. (Jaswant Singh) manoj Judge.