DAYA NAND KALU Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court reversing that of the Lower Appellate Court, and consequently dismissing the suit of the plaintiff-appellant raises the question of interpretation and scope of certain provisions contained in Sections 88 and 89 of the Code of Criminal Procedure, 1898 (hereinafter called the Code). The facts of the case which are not in dispute may first be noticed.

(2.) The rights of occupancy tenancy in two Bighas and 13 Biswas of agricultural land situate in village Taoru, Tahsil Nuh, District Gurgaon, belonged in equal shares to Lakshmi Narain deceased and Daya Nand plaintiff-appellant who is a nephew of Lakshmi Narain, The aforesaid Lakshmi Narain was wanted in a murder case, was not apprehended, had absconded and was consequently proclaimed as an absconder under Section 87 of the Code. Lakshmi Narain not having surrendered to custody in spite of the proclamation, his half share in the occupancy tenancy rights was attached under Section 88 of the Code on June 9, 1924, and possession of the half share in the land was subsequently taken by the Collector, Gurgaon, on behalf of the then Punjab Govvernment under Subsection (4) of Section 88. No claim under Sub-section (6-A) of Section 88 in respect of the attached property was made by anyone, and it is the common case of both sides that no one other than Lakshmi Narain had any interest in the said estate during Lakshmi Narain's lifetime. Lakshmi Narain was subsequently apprehended, brought to trial and convicted on December 30, 1944. A copy of the judgment of Magistrate First Class is Exhibit P-3. His appeal to the High Court was, however, accepted, and he was acquitted and released from custody. Neither before his conviction nor after his acquittal did Lakshmi Narain make any application for restoration of the attached property. As Lakshmi Narain had not appeared within the time specified in the proclamation issued against him the property in question of which possession had been taken by the Collector came to be and continued to be at the disposal of the State Government under Subsection (7) of Section 88. The State did not, however, dispose of the property. In the meantime the occupancy rights of Lakshmi Narain in the land in question ripened into rights of ownership by operation of Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. At about the same time Lakshmi Narain died leaving behind him his nephew Daya Nand plaintiff-appellant as the sole heir. This fact is also not disputed that Lakshmi Narain has left behind no other heir. Since the exact date of death of Lakshmi Narain is not available and the only finding is that he died either in 1952 or in 1953, the occupancy rights in his land ripened into ownership thereof either in his own hands or after him in the hands of the plaintiff. It was in the above-mentioned circumstances that on May 30, 1961, the appellant before us filed a suit for possession of the land in dispute against the State of Punjab (now represented by the State of Haryana). The suit was contested by the State and the contest led to the framing of the following issues by the trial Court--

(3.) By his judgment, dated April 24, 1962, the Court of Shri Dev Raj Khanna, Subordinate Judge First Class, Gurgaon, held on Issues Nos. 1, 2 end 5 (quoted above) that the plaintiff was the owner of half share in the land which was originally in his occupancy tenancy, that the plaintiff was the heir of Lakshmi Narain, but did not become the owner of the land in dispute as the right of the plaintiff to get the land restored to him as such heir under Section 89 of the Code of Criminal Procedure was barred in the light of the judgment of the Lahore High Court in Dewa Singh v. Fazal Dad, AIR 1928 Lah 562. Issue No. 4 was decided in favour of the plaintiff and it was held that the suit was maintainable. No separate clear finding was recorded on Issue No. 3 though it was found that the State had attached the land in question before the death of Lakshmi Narain. The effect of the attachment and non-restoration of the land was that it remained at the disposal of the State Government which was interpreted by the learned Subordinate Judge to mean that the land could continue to remain in the possession of the Government which was free to deal with it in such manner as it chose.