JAI SINGH Vs. RESHMA

JUDGEMENT

(1.) THIS is a civil revision petition under Section 84 of the Punjab Tenancy Act against the order dated 21.11.2000 of the Commissioner Ambala Division vide which he had confirmed the order dated 26.9.2000 of Collector, Kaithal and the order dated 29.5.1998 of Assistant Collector, Ist Grade, Kaithal.

(2.) THE facts of the case are that Smt. Ram Piari, the mother of respondent No. 1 Smt. Reshma, was the owner of 114 Kanals 18 Marlas of land in village Ahun, Tehsil and District Kaithal. Smt. Ram Piari sold the land to Shri Balbir Singh vide registered sale deed dated 13.11.81. Smt. Reshma filed a suit against her mother Smt. Ram Piari impleading Smt. Ram Piari and Balbir Singh as respondents for declaration that Smt. Reshma is owner of the land and also sought a decree for possession of the land. The suit filed by Smt. Reshma was based on a collusive decree dated 12.9.1979 suffered in her favour by her mother Smt. Ram Piari. During the pendency of this suit, Shri Balbir Singh further sold the land in favour of the present petitioners. This suit was decreed on 5.8.1986 and Smt. Reshma was held to be entitled to possession. The petitioners filed an appeal against this which was dismissed by the District Judge on 28.5.1987 and a regular second appeal against this was dismissed by the Hon'ble High Court on 2.6.1989. Subsequently, Smt. Reshma filed a suit for recovery of mesne profits on the ground that the possession of the petitioners was unauthorised. This suit was decreed in favour of Smt. Reshma by Assistant Collector, Ist Grade vide order dated 29.5.1998. The appeal of the petitioners against this order was dismissed by Collector, Kaithal on 26.9.2000 and the appeal against this order was dismissed by the Commissioner Ambala Division vide order dated 21.11.2000.

(3.) THE respondent No. 2 was neither present nor represented by Counsel. Therefore, ex parte action was taken vis-a-vis respondent No. 2. The learned counsel for the respondent No. 1 stated that the first plea of the petitioners is that they are bona fide transferees and the doctrine of lis pendens is applicable to them and they are not bound by a decree against their predecessors. He stated that this issue has already been decided against the petitioners by the Civil Court and cannot be allowed to be raised again by the petitioners. He stated that the second plea of the petitioners is that the suit is barred under Order 2 Rule 2 of the CPC. He stated that the present petitioners cannot be allowed to raise this question at the second revisional stage. He stated that, in addition, the Civil Court has no jurisdiction to grant the relief of recovery of mense profits and this can be filed only in the Revenue Courts. He stated that the third plea taken by the petitioners is that mense profits cannot be claimed for more than three years but the suit was filed on 19.10.1992 and damage for the three years preceding the institution of the suit can be claimed. He stated that the revisional Court has granted a decree for the Rabi 1993 crop also which had become due during the pendency of the suit. He stated that the petitioners have also raised the plea that the respondent cannot claim more than the rent prevalent in the area but this is not applicable in the present case because it applies to a person who was earlier a tenant and whose possession has later become unauthorised. He stated that the present petitioners were never tenants and have been claiming themselves to be the owners of the land which fact has been dismissed upto the level of the Hon'ble High Court. The learned Counsel quoted the following rulings in support of his arguments :