Full Judgment Text
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PETITIONER:
DALIP CHAND & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT06/09/1994
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 SCC Supl. (1) 233 JT 1995 (2) 448
1994 SCALE (4)587
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. The whole case appears to have gone on a wrong track.
This appeal by Special Leave arises from the decree dated
September 21, 1993 in Regular Second Appeal No. 530/75
dismissing the second appeal of the appellants and
confirming the decree of the additional District Judge,
Jullundur in appeal No. 173/72. The Additional District
Judge reversed the decree of the Sub - Judge First, Class,
Jullundur dated August 3,1972 where in the SubJudge had
declared that the appellants were the owners of the lands in
Pakistan and in lieu of their lands in Pakistan suit lands
were allotted to the appellants for rehabilitation and
issued a permanent injunction restraining the respondents
from dispossessing the appellants from the suit lands.
2. The facts are not., in dispute. On March 12,1928, 60
bighas of land was sold by Gajinder Singh Dhillon to Santa
Singh and Phagat Singh for valuable consideration of the
land situated in the village Sewai Tehsil Ahmedpur Distt.,
Rahimpur Khan in Bahawalpur State which is a part of
Pakistan. It is the case of the appellants that mutation
was effected on February 17,1932 in their favour. At the
time of the sale Dhillon casts was non - Agricultural Tribe.
Thereafter, it would appear that proceedings were initiated
to review the mutation effected in favour of the appellants
as-owners and to treat them as mortgagees. Before mutation
could be effected the appellants who had migrated from
Pakistan to India and settled down at Jullundur. In lieu of
the land they had lost in Pakistan, they had applied for and
were granted the suit lands. The rehabilitation authorities
are said to have secured the mutation records from Pakistan
where in it later on appeared to have been recorded that the
appellants remained in those lands as mortgagees.
Therefore, their allotment came to be cancelled on July
3,1961 which was challenged by the, appellants in various
proceedings and ultimately in a writ petition No. 598/64 and
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the High Court held that since there is a disputed question
of fact, the appropriate course will be the civil suit.
Accordingly the civil suit came to be filed and declaration
was given by the civil court which was reversed as narrated
hereinbefore.
3. As regards the contesting respondent Nos. 2 to 4 are
concerned admittedly they did not make any application
before the competent authority for allotment of land in lieu
of the lands they lost in Pakistan nor any allotment made in
their favour more particularly in relation to the suit
lands. These facts are not in dispute. The only question
which ultimately arose and decided by the District Court and
the High Court is whether the civil court had jurisdiction
to give the declaration. The Distt. Court and the High
Court were palpably wrong in holding that the Civil Court
has no jurisdiction for the obvious reason that the
appellants are not claiming any declaration of their
ownership of the lands in Pakistan. What they had claimed
was that they had lost allotment of suit lands were made for
the rehabilitation by the first re-
450
spondent and that, therefore, as owners they are entitled to
maintain the allotment. The mutation proceeding secured
from Pakistan would show that the respondents’ predecessors,
namely, vendor-Gajinder Singh was an Agriculturist Tribe.
The sale to the appellants by him was on March 12, 1928 is
not in dispute. On that date they were non-agriculturists
and that, therefore, the Punjab Prohibition of Ownership &
Transfer of Lands Act, is inapplicable. The subsequent
notification that Dhillon caste is an agriculturist Tribe on
May 9,1932 did not have any retrospective effect on the
alienation made as early as March, 1928. In consequence the
sale of the lands by Gajinder Singh in favour of the
appellants was valid. When the sale is valid they were the
owners of the land and since that land was lost due to
partition they rightly made an application for allotment in
lieu of the lost land. The subsequent mutations effected
will not have any effect on the year 1928. Therefore, the
allotment initially was rightly made. The authorities,
therefore, were not justified in cancelling the allotment on
July 3 1961. Since the lands allotted to them are situated
in Jullundur Distt. within the territorial jurisdiction of
the trial court, it is not in dispute that certainly the
Civil Court can go into and in fact the trial court had gone
into that aspect of the matter and given the declaration as
prayed for. The Distt. Court and the High Court,
therefore, have committed grievous error in holding that the
Civil Court had no jurisdiction and the finding that the
appellants are only mortgagees, is also illegal in view of
the fact we have stated.
4.Accordingly the appeal is allowed, the judgment and decree
of the High Court and the district Court are set aside and
that of the trial court is confirmed but in the
circumstances parties are directed to bear their own costs.
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