MEHRU Vs. MOHAN LAL

JUDGEMENT

(1.) The respondents, owners of the land in dispute measuring 16 kanals, 6 marlas, comprised of Khasra Nos. 3 and 4, rectangle No. 77, instituted a suit for its possession alleging that the petitioner was a trespasser and in its occupation without any right. This suit according to the decree-sheet produced on the record was instituted on Mar. 21, 1970 though in the main body the date of presentation is stated to be July 15, 1967. The petitioner prior thereto moved an application under S.18 of the Punjab Security of Land Tenures Ac (hereinafter called the Act) for purchase of the said land claiming himself to be its tenant which was opposed by the respondents but allowed by the Assistant Collector Grade I, Fatehabad, vide judgment D/- Nov. 3, 1967, Exhibit JDW/1. In the suit pending in the Civil Court, the parties entered into a compromise whereby the respondents stipulated that Mehru petitioner would become owner of the land in dispute on payment of Rs. 3000/- in four equal instalments payable on Dec. 15, 1970, June 15, Dec. 15, 1971 and June 15, 1972, in addition to the amount ordered to be paid by the Revenue Authority. It is further stated in the decree sheet passed on the basis of the compromise that the order of the Assistant Collector Grade I, permitting the purchase by the petitioner shall have no effect on the rights of the respondents if the instalment amount was not paid on the stipulated date and the suit shall be deemed to have been decreed. It is not disputed that whole of the amount of Rs. 3,000/- has been paid by the petitioner but because the two last instalments were not paid within the time stipulated, the respondents instituted execution proceedings to recover possession of the said land in accordance with the terms of the decree which provided that in case the instalments are not paid as scheduled, the plaintiffs shall be entitled to obtain possession of the said land after refunding the amount received. The petitioner opposed the application and pleaded that the decree was without jurisdiction, that the whole of the amount had been paid and that the default was inadvertent and unintentional. The executing Court overruled his objections and ordered theissuance of warrant of possession. Having failed in the appeal before the Senior Sub-Judge, he has come up in this revision.

(2.) The learned counsel for the petitioner assailed the correctness of the impugned order on two grounds. Firstly, that the order having been passed by the Assistant Collector Grade I on Nov. 13, 1967, allowing the petitioner to purchase the land in dispute and the first instalment having been paid, he was deemed to have become owner of the land by virtue of the provisions of S.18(4)(b) of the Act and no civil suit was competent to challenge its validity as provided in S.25 of the Act. Secondly, it was contended that the petitioner being a tenant his ejectment could be sought only in accordance with the provisions of S.9 and a consent order which does not satisfy the requirements of the aforementioned section would be without jurisdiction and unenforceable. None of the two contentions, however, has any merit. The authorities under the Act though may be competent to determine the question of relationship of tenant and landlord between the parties for purpose of S.18 but the decision is not final and is open to challenge in the civil Courts which only have plenary jurisdiction to determine the question of title. This matter stands concluded by a Division Bench of this Court in Khazan Singh v. Dalip Singh, 1969 Pun LJ 459 wherein it was held that a Civil Court is competent to go into the question that the conditions required to be established before the Assistant Collector can exercise jurisdiction under S.18 of the Punjab Security of Lands Tenures Act, did or did not exist and that the question of relationship of landlord and tenant which is a question of status of the parties, cannot be finally decided by the Assistant Collector either under the Punjab Security of Land Tenures Act or under the Punjab Tenancy Act. The suit filed by the decree-holder to challenge the order passed under S.18 in favour of the petitioner on the ground that the petitioner was not in possession of the land in dispute as tenant was, therefore, competent and the Court could hold the said order as void and without jurisdiction if it was found that the petitioner was not holding the land in dispute as tenant. The second contention as well has to be overruled on the same reasoning because unless the relationship of landlord and tenant is admitted between the parties the provisions of S.9 of the Act would not come into play. In all the three decisions of the Supreme Court in Smt. Nai Bahu v. Lala Ram Narayan, AIR 1978 SC 22; Chandrika Misir v. Bhaiyalal, AIR 1973 SC 2391 and Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838, relied upon by the learned counsel for the petitioner, the relationship of landlord and tenant was admitted between the parties and proceedings for ejectment had been instituted before the Rent Controller. On these facts, it was ruled that the order of ejectment passed on the basis of relationship between the parties would not be binding on the tenant unless it was shown that any ground for ejectment as envisaged by law was available and proved on the record or acceded to by the tenant. In the present case, the suit had been filed before the Civil Court for possession of the land in dispute on the basis of title alleging the petitioner to be a trespasser. The decree suffered by the petitioner for possession thus did not offend any provision of law which could render it void or without jurisdiction. Both the contentions raised by the learned counsel, therefore, have to be overruled.

(3.) However, the petitioner can be relieved of the rigours of consent decree on another ground. It is well-established that a consent decree is nothing but a contract between the parties with a seal of the Court superimposed thereon and as such can be avoided on any ground on which the contract can be avoided under the provisions of the Contract Act. If the contract or consent decree passed thereon contains a forfeiture or penalty clause, the court can give relief to the judgment-debtor by virtue of the provisions of S.74 of the said Act. Reference in this connection may profitably be made to a Division Bench decision of this Court in Chattar Singh v. Khetu, 1966 Cur LJ 665 which approved the dictum laid down in the earlier case, Jwala Ram v. Mathra Dass, AIR 1931 Lah 696 in the following terms :