S MOOL SINGH Vs. MOHD UMAR

JUDGEMENT

(1.) THIS civil second appeal arises out of the following facts: The appellant -plaintiff was a tenant in possession of a piece of land measuring 16 kanals 4 marlas in Khasra Nos: 20 and 21 situate in village Nangali, Tehsil Haveli, on the date the Big Landed Estates Abolition Act, 2007 (for brief the Act) came into force. The proprietary rights in this extent of land came to be transferred in his name under section 5 of the Act. After some time the appellant put the defendants -respondents in possession of the land and thereafter executed an agreement to sell in their favour on 11 -9 -1966. According to the terms of the deed he received Rs. 1,600/ - at the time of its execution and also acknowledged to have received a sum of Rs. 900/ - earlier. The price of the land was fixed at Rs. 2.500/ -. In this way it is alleged that the appellant received full consideration for the sale of the land. The agreement to sell inter alia stated that the respondents were already in possession of the land and that the sale deed would be executed when the transfer of land was permitted by the Government. It was also covenanted that in case the agreement to sell was found to be in -effective, and thereby the respondents were dispossessed from the land, the seller, i.e. plaintiff -appellant would be liable to return the money paid to him as consideration for the land and also that he would in that contingency be also liable to make good the damages and costs incurred by the respondents. On 28 -5 -1968 the plaintiff -appellant however, brought a suit in the court of Sub Judge, Poonch for possession of the land claiming that the respondents deceived him in making him to enter into the agreement to sell as they made him to believe that the necessary permission for executing the sale deed as required under the Act shall be procured from the Government by them which they failed to do. He also stated in the plaint that as under the provisions of the Act no transfer of the land could be made by him, the agreement to sell was ineffective. He also alleged that he was paid only a sum of Rs. 1,600/ - as the price of the land. The defendants -respondents contested the suit and claimed that as the transfer of the land and all interests therein had already taken effect, the plaintiff -appellant, having contravened clear provisions of the Act lost ownership rights in the said land and under Section 24 of the Act, the land in question had escheated to the State. They further contended that as the ownership rights of the plaintiff -appellant thus having extinguished he had no right left to file the suit for possession. In the alternative they contended that if a decree for possession was ultimately passed in favour of the plaintiff -appellant, he should be made to pay the cost price of Rs.

(2.) ,500/ - and Rs. 3,000/ - as the amount which the respondents spent on the improvements of the land and for constructing a house on the land in dispute, within the knowledge of the appellant. The trial court raised a number of issues and ultimately held that the rights of the plaintiff -appellant in the disputed land had not extinguished and the land, therefore had not escheated to the State. He was held entitled to a decree for possession. The defendants -respondents were held to be entitled to the return of Rs. 2,500/ - as cost price of the land paid by them as well as Rs. 1,100/ - as costs of the improvements made by them on the land. The plaintiff -appellant was directed to deposit Rs. 3,600/ - within two months of the said order. 2. Against this judgment and decree of the learned trial Judge dated 30 -12 - 1972, cross -appeals were taken before the District Judge, Poonch. The plaintiff -appellant contended before the District Judge that the respondents -defendants were not entitled to receive any amount either as cost price of the land or for any improvement made thereon. The respondents challenged the judgment and decree of the trial Judge on the ground that the plaintiff -appellant had lost all rights in the property in dispute and had no right to obtain a decree for possession and that the land in dispute had escheated to the State. The learned District Judge on hearing the appeals came to the conclusion that the trial court had erred in decreeing the suit of the plaintiff -appellant as it was of the view that the right of ownership of the plaintiff -appellant in the disputed land had extinguished as soon as he put the defendants -respondents in possession and permitted them to remain so for four consecutive seasons. Under the circumstances he allowed the appeal filed by the defendants -respondents and held that the plaintiff -appellant was no longer the owner of the property and therefore, was not entitled to receive back the possession. He further ordered that as the property had escheated to the State, no question of payment of cost price or any other amount arose in the case. It was against this order of the District Judge dated 31 -8 -1973 that the present appeal has been filed by the plaintiff -appellant.

(3.) BEFORE us it was contended by the learned counsel for the appellant that the District Judge has misdirected himself in stating that the land in dispute had escheated to the State, in accordance with the provisions of Sub -clause (c) of Section 24 of the Act. His submission was that as the appellant had not sublet the land in dispute to the respondents it was clear that Sub -clause (c) of Section 24 of the Act was not attracted on the facts of this case. On the other hand, the learned counsel for the respondents urged that as the appellant had, before executing the agreement to sell, handed over the possession of the land in dispute to the respondents, he had for all practical purposes sub -let the land in dispute to the respondents who continued to remain in possession for more than four successive seasons prior to the filing of the suit. The learned counsel for the respondents, however, conceded that the provisions of Sub -clause (b) of Sec. 24 of the Act were not attracted in this case but he submitted that sub -clause (c) of the said section was applicable to the facts of the case in hand, and as such the appellant had lost ownership rights in the disputed property, and the land had escheated to the Government.