JANGIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Jangir Singh and Amar Singh have filed this petition under Articles 226 and 227 of the Constitution of India for issuance of an appropriate writ or order quashing the impugned order dated 3rd of December, 1969, passed by the Sub-Divisional Officer (Civil), Barnala, respondent No. 2.

(2.) There is no dispute about facts. One Attar Singh son of Gulab Singh, resident of village Ghehal, was the owner of 191 Bighas 15 Biswas of agricultural land situate in Patti Dod at the said village. Attar Singh left the village and was not heard of for more than twenty years. He left behind no descendants and his property was escheated to the State Government. The petitioners in this case filed suit for possession with respect to 33 Bighas 17 Biswas of land which was decreed vide judgment dated 9th of June, 1958, of the trial Court. The possession of suit land was also taken by the petitioners. The State, respondent No. 1, filed an appeal against the said judgment of the trial Court. The possession of suit land was also taken by the petitioners. The State, respondent No. 1, filed an appeal against the said judgment of the learned Subordinate Judge which was allowed by the Additional District Judge, Barnala, vide his judgment dated 21st of July, 1959, and the suit of the petitioners was dismissed. It is alleged that inspite of the dismissal of the suit, the petitioners continued in possession of land measuring 21 Kanals 15 Marlas and the State never filed any application under Section 144 of the Code of Civil Procedure for restitution of the possession of the said land. It is stated that on 3rd of December, 1969, some order (copy of which is not attached with the petition by the petitioners) was passed by respondent No. 2 for taking possession of the land in dispute from the petitioners. The petitioners filed an appeal against the said order of respondent No. 2 which was dismissed by the Collector, Sangrur, on 11th of February, 1970, on the ground that no appeal was competent. It is in this situation that the present petition has been filed by the petitioners.

(3.) The only point for determination in this petition is whether the State can take possession of the land even if no application under Section 144 of the Code of Civil Procedure was made for restitution under Section 144 of the Code of Civil Procedure was made for restitution of the land in dispute. Return has been filed on behalf of the State by the Sub-Divisional Officer and also by the Collector by way of affidavits. It is stated in para 9 of the Sub-Divisional Officer's return that one Gandhi Singh sent him a complaint that the petitioners were in unauthorised possession of land measuring 33 Bighas 17 Biswas and an inquiry was held and the allegations in the complaint were found correct. Consequently, the possession of the said land was taken through Thadabandi according to the rules by beat of drum and the entry thereof had been made in the Roznamcha Waqiati of the Patwari Halqa under the rules. It is further stated in para 12 of the said return that the possession of the disputed land was actually taken from the unauthorised occupants (petitioners) on 17th of December, 1969, and the entry in this respect was made in the Roznamcha and the land in question was leased out for the crop Rabi 1970 in open auction. The report of the Girdawar Kanungo attached with the said return also shows that the petitioners Amar Singh and Jangir Singh were present at the time the proceedings regarding possession were taken by the Girdawar Kanungo. It does not stand to reason that if no application is made under Section 144 of the Code of Civil Procedure, then the party in whose favour the decree by the appellate Court is varied cannot take possession by any other legal means. The petitioners have no legal right to retain the possession. According to their own showing the decree which was passed in their favour by the trial Court was reversed by the Additional District Judge and simply because the State had not filed an application under Section 144 of the Code of Civil Procedure for restitution, the illegal occupants cannot be allowed to remain in possession. The possession of the land in dispute was taken on 17th of December, 1969, in accordance with Rules as shown in the returns filed by the Sub-Divisional Officer and the Collector and also from the report of the Girdawar Kanungo. Section 144 of the Code of Civil Procedure is just one mode of obtaining possession by way of restitution. If the party in whose favour the decree is reversed obtains possession by any other legal means, it cannot be said that the party in whose favour the decree is reversed cannot take possession and that the illegal possession of the other party whose suit is dismissed will continue. Moreover, the writ jurisdiction is a discretionary remedy. The petitioners came to this Court after the possession was taken by the State. It is settled law that a discretion under Article 226 of the Constitution cannot be exercised where no manifest injustice has taken place. The petitioners had no right to the land. They came into possession only under the decree of the trial Court which was ultimately varied and their suit was dismissed which became final.