DALIP CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The whole case appears to have gone on a wrong track. This appeal by special leave arises from the decree dated 21/9/1993 in Regular Second Appeal No. 530 of 1975 dismissing the second appeal of the appellants and confirming the decree of the Additional District Judge, Jullundur in Appeal No. 173 of 1972. The Additional District Judge reversed the decree of the Sub-Judge First Class, Jullundur dated 3/8/1972 wherein the Sub-Judge 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 12/3/1928, 60 bighas of land was sold by Gajinder Singh dhillon wherein it is later on appeared to have been recorded that the appellants remained in those lands as mortgagees. Therefore, their allotment came to be cancelled on 3/7/1961 which was challenged by the appellants in various proceedings and ultimately in Writ Petition No. 598 of 1964 and 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 had 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 was decided by the District court and the High court is whether the civil court had jurisdiction to give the declaration. The District court and the High court were palpably wrong in holding that the civil court had 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 the land in Pakistan and in lieu thereof an allotment of suit lands was made for the rehabilitation by the first respondent and that, therefore, as owners they are entitled to maintain the allotment. The mutation proceedings secured from Pakistan would show that the respondents' predecessor, namely, vendor-Gajinder Singh was of an agriculturist tribe. The sale to the appellants by him was on 12/3/1928 is not in dispute. On that date they were non-agriculturists and that, therefore, the Punjab Prohibition of Ownership and Transfer of Lands Act, is inapplicable. The subsequent notification that Dhillon caste is an agriculturist tribe on 9/5/1931 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 character of the ownership of land held by the appellants in the year 1928. Therefore, the allotment initially was rightly made. The authorities, therefore, were not justified in cancelling the allotment on 3/7/1961. Since the lands allotted to them are situated in Jullundur District 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 declarationas prayed for. The District 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.