Judgment:
N.K. Kapoor, J.
1. This judgment shall dispose of Regular Second Appeal No. 1770 of 1992 and 799 of 1991 directed against the judgment and decree of the District Judge, Karnal, dated 7.12.1990.
2. Two suits were filed; one civil suit No. 641 of 1985 was filed by Sucha Singh against Parmanand on 4.3.1985 for permanent injunction restraining the defendant from interfering in his peaceful possession. Parma Nand filed civil suit No. 743 of 1985 on 27.5.1985 claiming identical relief i.e. restrain order against the defendant not to interfere in his possession over the suit land. Both the suits were consolidated. The Court further directed that evidence will be taken in civil suit titled Sucha Singh v. Parma Nand.
3. On the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is owner in possession of the suit land detailed in para No. 1. of the plaint? OPP.
2. Whether the defendant is owner in possession of the suit land OPD.
3. Whether the allotment order passed in favour of plaintiff is illegal and is not binding on the right of defendant OPD
4. Whether the suit is properly valued for the purposes of court fee and jurisdiction OPD
5. Whether the suit is time barred? OPD
6. Whether the suit is not maintainable in the present form OPD.
7. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD
8. Whether the defendant is entitled to special costs OPD.
9. Relief.
4. After allowing the parties to lead evidence in respect of issues framed, the trial Court chose to decide issues No. 1,2 and 3 together and held that Parma Nand has failed to prove that any mortgage in respect of the suit land was created in the name of his ancestors nor he was able to prove his ownership by adverse possession. So the trial Court held that plaintiff Sucha Singh was allotted the suit land and possession of the same was actually delivered to him. These issues were decided in favour of the plaintiff and against the defendants. Issue No. 4 was also decided in favour of the plaintiff holding that proper Court fee has been affixed. Similarly, plea of the defendant that the suit is barred by limitation was found to be devoid of substance. Issue No. 5 was decided against the defendant. Issues No. 6, 7 and 8 were decided against the defendants. Resultantly, the suit titled Sucha Singh v. Parma Nand was decreed with costs restraining the defendant from taking forcible possession of the suit land and the other suit titled Parma Nand v. Sucha Singh was ordered to be dismissed.
5. Before the lower appellate Court, two separate appeals were preferred. Learned counsel for the appellant once again argued that the suit land was a composite property as Muslims had mortgaged the same in favour of the predecessor-in-interest of Dwarka Dass and that the interest of Evacuees and Non-evacuees therein had not been separated in accordance with law under the Evacuee Interest (Separation) Act, 1951, and so such a property could not be allotted to Sucha Singh. Since allotment in favour of Sucha Singh is illegal, the trial Court has erred in law in holding the same to be a valid allotment.
6. This plea was refuted by the counsel for the respondent arguing that since no such plea had been set up either in the plaint or in the written statement, the 'same cannot be urged before this Court especially when no such argument was raised before the trial Court and even the grounds of appeal do not make mention of the same.
7. The lower appellate Court after hearing learned counsel for the parties instead of dilating upon the issues separately chose to examine various contentions under one head. Dealing with the nature of the property alleged to have been allotted -Whether the same is a composite property and also whether the allotment allegedly made in favour of the plaintiff is free from any infirmity - the lower appellate court examined the case in the light of relevant provisions contained in the Evacuee Interest (Separation) Act, 1951 (for short 'the Act') and the decision rendered by the Apex Court in case reported as Bhanwarlal and Anr. v. Regional Settlement Commissioner, Jaipur, cum Custodian Evacuee Properly and Ors., AIR 1965 S.C. 1885, and held that the allotment of the suit land in favour of the plaintiff is illegal as interest of an evacuee from that of a non-evacuee has not been separated under the Evacuee Interest (Separation) Act, 1951. Since the property could be declared to be an evacuee property, the same could also be legally allotted. While dealing with the claim set up by the respective parties regarding possession of the suit land at the spot, the lower appellate Court relying upon the daily diary report of village Patwari dated 25.6.1976 and the subsequent correction ordered by the Assistant Collector IInd Grade in the khasra girdawari entries held Sucha Singh to be in possession of the suit land. As regards the claim set up by Parma Nand that he being descendant of Dawarka Dass-mortgagee - and has remained in possession of the suit land was not accepted on the short ground that he failed to prove that he is descendant of Dawarka Dass. On the aforesaid grounds, both the appeals were dismissed.
8. Learned counsel for the appellant has termed the judgment and decree of the Courts below to be wholly erroneous and legally unsustainable. According to the counsel, the case of Sucha Singh is based upon allotment in his favour by the Custodian. Allotment has been held to be illegal by the lower appellate Court. This finding has not been challenged by Sucha Singh and hence it is conclusive. The Courts below have come to the conclusion that Sucha Singh had no right in the property, yet on account of misreading of documents has chosen to hold him to be in possession of the suit land. The sole basis is the entry in the rapat roznamcha wakiyati alleged to have come into existence on the basis of allotment in favour of Sucha Singh. Interestingly, though appellant is shown to be in possession of the land, yet no notice had been issued to him. The lower appellate Court has also not taken into consideration the documents Exhibit D-12, D-13 and D-14, copies of jamabandi for the year 1961-62, 1968-69 and 1973-74 respectively, which records the appellant to be in possession of the suit land. The appellant's name continued in the subsequent jamabandi for the year 1977-78 and 1982-83 as well. With overwhelming evidence on record proving the possession of the appellant, the conclusion arrived at by the lower appellate Court is unsustainable in law.
9. Counsel for the respondent, on the other hand, argued that there is ample material on record which clearly prove that the suit land was allotted to the respondent-plaintiff being an evacuee property. Not only this, in pursuance of the allotment, possession of the suit land too was delivered to him at the spot. Rapat roznamcha wakiyati dated 25.6.1976, Exhibit P-1, clearly prove delivery of possession of the suit land. A perusal of the aforesaid document makes it clear that before delivering the possession, proclamation was effected in the village. So the plea advanced by the appellant that no notice was issued to him is not based on facts. Otherwise too, as he has failed to prove his title, the Courts below rightly found no substance in the pleas advanced by the appellant. Since possession has been delivered, subsequent order passed by the Assistant Collector IInd Grade for correction of revenue entries is appropriate and legal. It is also wrong to suggest that Assistant Collector IInd Grade could not order correction of the entries in view of the pendency of the suit. Since the appellant failed to prove on record that Dawarka Dass was mortgagee or that he succeeded to the estate left by him, the Courts below rightly came to the conclusion that the same has no merit as Parma Nand - appellant - could neither prove ownership nor his possession. Possession is a question of fact and such a finding unless totally perverse is not liable to be interfered with in a regular second appeal. Both the appeals thus deserve to be dismissed.
10. I have heard learned counsel for the parties, perused the judgments of the Courts below as well as other relevant documentary and oral evidence adduced by the parties. Sucha Singh has laid claim on the basis of allotment. The lower appellate Court after examining the facts in the light of section 2(d) of the Evacuee Interest (Separation) Act, 1951 (for short 'the Act') has come to the conclusion that the disputed property is a composite property. Section 2(d) of the Act defines 'composite property' to be any property which or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 and - (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee; or (iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or (iv) in which an evacuee has such other interest jointly with any other person, not being an evacuee, as may be notified in this behalf by the Central Government, in the Official Gazette.' As per definition of 'composite property', it covers only such property in which an interest has been declared to be evacuee property or has vested in the Custodian of evacuee property under the Administration of Evacuee Property Act, 1950. Precisely put, it relates to a property which is held to be evacuees and non-evacuees and so till the interest of non-evacuees is separated; the evacuee interest in the property cannot be allotted to a person. In this case there is no document on record on the basis of which it can be inferred that the evacuee interest has been separated. Precisely for this reason, revenue entries continue to record the name of one Dawarka Dass s/o Ram Parshad to whom Muslim evacuees had mortgaged their land. Under section 10 of the Act, it is for the competent officer to separate the interests of the evacuees from those of the claimants in any composite property. Under section 11 of the Act, the evacuee interest so separated vest in the Custodian free from all encumbrances and liabilities. Under section 11 of the Act, the Custodian has been empowered to take possession of such property by evicting the claimants and other persons who may be in occupation thereof and may, for that purpose, use or cause to be used such force as may be necessary. However, it debars the Custodian from disturbing the possession of any person who is otherwise in lawful possession of the property at the commencement of the Act and has continued in such possession. Examined in the context for the present case, it can be said that earlier Dawarka Dass and later on appellant is recorded to be in possession as per revenue record. No such step had, admittedly, been initiated to evict the appellant in terms of the provisions of the Act. Thus, the cloud which has been cast upon the case of the appellant is copy of rapat roznamcha wakiyati dated 25.6.1976. Concededly, no notice has been issued to the appellant who, of course, has been shown to be in possession of the suit land at the spot. Mere proclamation in the village can hardly be construed to be a sufficient notice. Even if one does not accept the case of the appellant that he has succeeded to the estate of Dawarka Dass (as also held by the Courts below) such a person even if taken to be a trespasser can only be evicted in a manner authorised by law. The apex Court in case reported as Mohan Lal and Ors. v. The State of Punjab and Ors., 1971 P.L.J. 338 (S.C.) held' under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law.' Similarly, this Court in case reported as Guru Nanak Ex-Servicemen Co-operative Tenant Farming Society Group No. 2 and Ors. v. The State of Haryana and Ors., (1971)73 P.L.R. 860 held that an unauthorised occupant cannot be thrown out just by police force. Competent authority has to hear the petitioner, record a finding about his being in unauthorised occupation and then evict him in manner authorised by law.
11. Whether mere proclamation can be considered to be a valid and sufficient notice is again being seriously contested by the respondent counsel. As per para 9.9. of the Punjab Land Records Manual, a duty has been imposed upon the revenue authorities to notify the proposed change to adversely affected parties. In case no notice has been issued, such a change in entry cannot bind the affected person. This matter came up for consideration in case reported as Ram Sarup v. Balwant Sing and Ors., 1991 P.L.J. 278 and the Court relying upon para No. 9.9. of the Punjab Land Records Manual held it is incumbent upon the concerned revenue authorities to inform the affected person before effecting any change in the revenue entries. This being the position, I am of the view that on the basis of entry in rapat roznamacha wakiyati dated 25.6.1976, Exhibit P-1, the appellant cannot be deemed to have been dispossessed.
12. The precise point regarding possession can be determined otherwise too on the basis of entries in the revenue record. As per entries in the Jamabandi for the year 1961-62, 1968-69 and 1973-74, the suit land in shown to be in possession of Patti Ram s/o Mai Ram as tenant at will (Exhibits D-12, D-13 and D-14 respectively). Parma Nand plaintiff is son of Patti Ram s/o Mai Ram and as per section 8 of the Punjab Security of Land Tenures Act succeeds being his Class-I heir under the Hindu Succession Act. In the jamabandi for the year 1977-78 and 1982-83, Exhibit D-15 and D-16 respectively, Parma Nand s/o Patti Ram is recorded to be tenant at will in the cultivation column. Subsequent entries in the Khasra Girdawari continue to show Parma Nand to be in possession of the suit land. Thus, there is ample evidence on record which clearly prove Parma Nand to be in possession of the suit land. This again is being contested by the counsel for the respondent on the ground that in view of the correction ordered by the Assistant Collector IInd Grade subsequent entries in the revenue record deserve to be read accordingly i.e. instead of the name of Parmanand the same is to be read that of Sucha Singh. To this, the appellant argues that the correction in the entries has been made during the pendency of the suit and in view of the decision of this Court the same does not bind the civil Court which is to assess the evidence independently of the order of the revenue officer (Assistant Collector IInd Grade). This Court had the occasion to consider this aspect of the matter in case reported as Gurnam Singh and Ors. v. Jagjit Singh, 1972 P.L.J. 211, wherein it has been held that where the dispute is regarding possession and correction of entries in the Khasra Girdawaris during the pendency of the suit, entries in the revenue record are to be assessed independently by the civil Court. Similar is the view taken in case reported as Nanha v. Partap Singh alias Chuhria and Anr., 1986 P.L.J. 535. The decision in case reported as Nimnjan Singh and Ors. v. The Financial Commissioner, Punjab (Revenue) and Ors., 1979 P.L.J. 352 is not attracted to the facts of the present case. Even therein, it has been held that whereas revenue authorities are competent to effect change in the khasra girdawari irrespective of the fact that civil Court is seized of the same matter, the findings of the civil Court regarding the status of the contesting respondent will over-ride the finding of the revenue authority resulting in the change of entries in the Girdawaris. Thus, it is incumbent upon the civil Court to examine the evidence adduced by the parties irrespective of the changing ordered by the revenue authority . during the pendency of the suit.
13. The question of possession has assumed significance as neither of the parties has been able to prove his ownership. In case of plaintiff Sucha Singh, allotment has been held to be illegal whereas in the case of defendant-appellant, he has failed to prove that he succeeds to the estate of erstwhile mortgagee - Dawarka Dass. The revenue record from the year 1961-62 onwards continue to show earlier the father of Parma Nand and thereafter Parma Nand to be in possession of the suit land as a tenant at will. Whether Parma Nand is a tenant at will or his status is that of a trespasser can only be determined as and when such a question is debated by the contending party. In any case, on perusal of the entries in the revenue record, there is no manner of doubt that Parma Nand was in possession of the suit land long before the alleged allotment in favour of plaintiff which has been held to be illegal. Since no notice for change of this entry was served upon the appellant, such a delivery of possession has no force in law nor the same can be construed adversely against the interest of a person in possession of the property.
14. Accordingly, I accept both the appeals, sets aside the judgment and decree of the Courts below and decree the suit filed by Parma Nand as prayed for and dismiss the suit filed by Sucha Singh. No order as to costs.