Hon'ble Mr. Justice R. Subhash Reddy
Hon'ble Mr. Justice Uday Umesh Lalit
C.A.@ SLP(C)No.27108/18
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11930 OF 2018
[Arising out of S.L.P.(C)No.27108 of 2018]
Gopal Singh (Dead) by LRs ... Appellants
Versus
Swaran Singh & Ors. ... Respondents
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This appeal is filed by the legal heirs of the
deceased defendant no.5 in the suit, aggrieved by the
judgment and order dated 16.02.2018 passed by the High Court
of Punjab & Haryana at Chandigarh in Regular Second Appeal
No.1163 of 1991 (O&M). Respondent nos.1 to 4 herein were
the plaintiffs in Suit No.496 of 1985 filed before the SubJudge 1st Class, Sultanpur Lodhi, District Kapurthala in the
State of Punjab. In the said suit following reliefs were
claimed by them :
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“Suit for declaration that they are absolute
owners in possession being bonafide purchasers
for consideration and without notice of land
measuring 82 kanals 3 marlas bearing khasra
nos.54/22min (4-0), 61//2 (8-0), 1min (4-18),
9(10-4), 54//22min (4-0), 61//min (4-0), 55//16
(8-0), 17 (7-7), 54//19min (4-0), 20 (8-0), 21
(8-0), 54///19min (4-0), 25/25 (6-17), and
60/5/2 (0-17), total 82 kanals 3 marlas,
situated in village Kamalpur Patti, Tehsil
Sultanpur Lodhi, District Kapurthala as per
Jamabandi for the year 1981-82 and the order of
learned Chief Sales Commissioner, Kapurthala
dated 28.3.1985 vide which the sale in favour of
Mohan Singh son of Alladatta of village
Mothawala, Tehsil Sultanpur Lodhi, District
Kapurthala dated 23.12.1964 qua the suit land
has been cancelled and allotment of this land in
favour of Gopal Singh defendant no.5 has been
considered right is highly illegal, arbitrary,
unwarranted without jurisdiction, against the
provisions of law and is thus unsustainable and
not binding on the rights and title of the
plaintiffs over the suit land with the
consequent relief of permanent injunction
restraining the defendants from reauctioning the
suit land or alienating it in any other manners
and further restraining the defendants from
interfering in the peaceful possession of the
plaintiffs in the suit land in any manner.”
3. The suit schedule property was auctioned in the
restricted auction under the provisions of The Punjab
Package Deal Properties (Disposal) Act 1976 [for short ‘the
Act’]. It was originally sold to one Mohan Singh, son of
Aladitta, resident of Kamalpur in the auction held on
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23.12.1964. There was a restriction on transfer which was
held pursuant to an auction, not to alienate the suit
property till the final realisation of the loan amount taken
by the allottee for purchase of the land or till the expiry
of 10 years which is later. On the ground that the said
Mohan Singh has breached the condition, proceedings were
initiated for resumption of the land. Initial order for
resumption passed by the authority was set aside in the writ
petition by the High Court. Thereafter, further order was
passed by the Deputy Commissioner-cum-Chief Sales
Commissioner, Kapurthala on 28.03.1985. The aforesaid order
was passed by recording a finding that cancellation of the
auction was proper and further confirmed the allotment made
in favour of the appellants herein.
4. The said order dated 28.03.1985 passed by the
competent authority under the provisions of the Act and the
rules framed thereunder has become final.
5. The trial court, by recording the finding that
respondent-plaintiffs are bonafide purchasers, has decreed
the suit by declaring the order dated 28.03.1985 passed by
the competent authority under the provisions of the Act as
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null and void and granted consequential relief of injunction
restraining the defendants from dispossessing the plaintiffs
from the suit land.
6. Aggrieved by the judgment and decree of the trial
court dated 25.01.1989, the appellant herein who is
defendant no.5 has filed Civil Appeal No.57 of 1989 and
defendant nos.1 to 4 which are authorities of the State also
filed Civil Appeal No.59 of 1989. By the common judgment and
decree dated 18.01.1991, the first appellate court allowed
the appeals by setting aside the judgment and order of the
trial court mainly on the ground that in view of the
provision under Section 16 of the Act, Civil Court has no
jurisdiction to try the suit. Further, it was also held by
the appellate court that the suit is liable to be dismissed
because no notice, as required under Section 80 of the Code
of Civil Procedure (CPC) was given before filing the suit
and no application was filed to dispense with the
requirement of giving notice under Section 80(2).
7. Aggrieved by the common judgment and decree passed in
the said civil appeals by the first appellate court, the
respondent-plaintiffs have filed Second Appeal Nos.1163 and
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1164 of 1991. Said appeals are allowed by the High Court of
Punjab & Haryana at Chandigarh by judgment and decree dated
16.02.2018. Thus, the judgment and decree passed by the
trial court were restored.
8. We have heard Mr. Vikas Mahajan, learned counsel for
the appellants and Mr. Neeraj Jain, learned senior counsel
for the respondents who are on caveat and also perused the
written submissions submitted on behalf of the parties.
9. In this appeal, it is the case of the appellants that
against the initial cancellation of sale vide order dated
17.06.1975 the vendees of the original transferee have
approached the High Court in Civil Writ Petition No.5210 of
1975 and in view of the judgment dated 09.10.1979, after
hearing all the necessary parties, order dated 28.03.1985
was passed by the competent authority, cancelling the sale
and said order has become final and not challenged before
the revenue authorities. It is the case of the appellants
that the validity of the order dated 28.03.1985 cannot be
the subject matter of challenge before the civil court in
view of the bar under Section 16 of the Act. It is further
submitted that in view of the opportunity provided by the
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authorities judgment relied on by the High Court cannot be
applied having regard to the facts and circumstances. It is
submitted that in any event the finding recorded by the
first appellate court that suit is not maintainable for not
issuing notice under Section 80 of the CPC is not interfered
with and without recording any finding Second Appeal is
allowed.
10. On the other hand, it is the case of the respondentplaintiffs that respondent-plaintiffs are bonafide
purchasers of the suit land for a valuable consideration and
in similar cases this Court has dismissed the Special Leave
Petitions, as such, there is no ground to interfere with the
same. It is further submitted that in any event, in view of
Section 41 of the Transfer of Property Act 1882, Civil Court
is competent to entertain the suit for grant of relief as
prayed for. It is also pleaded that defect in the prayer,
if any, for quashing the order dated 28.03.1985, may not
come in the way of the respondent-plaintiffs for seeking
relief of declaration of their title which is to be
protected in view of the provision under Section 41 of the
Transfer of Property Act 1882.
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11. Having heard learned counsel on both sides, we have
perused the impugned judgment and the judgments of the lower
appellate court and the trial court.
12. It is not in dispute that originally land was put to
restricted auction to sell the land under the provisions of
the Act and the Rules framed thereunder. There are
restrictions on the alienation of the land as per the
original transfer. At first instance when the order of
cancellation was passed, matter was carried to High Court
and the High Court has disposed of the petition by directing
the authorities not to take steps for eviction of the
petitioners therein unless they are provided opportunity
before passing appropriate order. After order was passed by
the High Court, order dated 28.03.1985 was passed cancelling
the transfer and further allotment made in favour of the
appellants herein was confirmed. Section 16 of the Act
reads as under :
“16. Bar of jurisdiction and finality of orders
(1) Save as otherwise expressly provided in this
Act, every order made by any officer or
authority under this Act shall be final and no
Civil Court shall have jurisdiction to entertain
any suit or proceeding, in respect of any matter
which the State Government, or any officer or
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authority apopinted under this Act is empowered
by or under this Act to determine, and no
injunction shall be granted by any Court or
other authority in respect of any action taken
or to be taken in pursuance of any power
conferred by or under this Act.
(2) Nothing in the Punjab Public Premises and
Land (Eviction and Rent Recovery) Act, 1973,
shall apply to package deal property.”
13. From a reading of the aforesaid provision, it is clear
that every order made by any officer or authority under the
said Act is final and no Civil Court shall have jurisdiction
to entertain any suit or proceeding and no injunction shall
be granted by any court or other authority in respect of any
action taken under provisions of the Act. The first
appellate court, by applying the aforesaid provision, has
clearly recorded a finding that the suit is barred and
further it was also held that suit is not maintainable
against the State and its authorities, who are defendant
nos.1 to 4, without issuing notice under Section 80 of CPC.
There is also nothing on record seeking leave from the court
for dispensing with issuance of notice as provided under
Section 80(2) of the CPC. The said aspect is not at all
dealt by the High Court. So far as the bar of the suit
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under Section 16 is concerned, the High Court referred to
Special Leave Petition(C) No.26714 of 2015, but, it appears
that the said petition is dismissed for non-prosecution.
High Court also referred to certain other earlier judgments
to support a finding on the validity of the order dated
28.03.1985. But we are of the view that when the suit
itself is barred, it is not open for the civil court to
record any finding on the validity of the order dated
28.03.1985. Even the judgment of the Full Bench of the High
Court in the case of State of Haryana & Ors. v. Vinod Kumar
& Ors.1 cannot be applied unless it is held that the order
passed by the primary authority is a nullity. As we are of
the view that the respondent-plaintiffs had an opportunity
before the authority and when the said order has become
final, in view of the bar under Section 16 of the Act, the
High Court has committed error in recording finding on the
validity of the order dated 28.03.1985. Further, as rightly
contended by counsel for the appellants that the appellate
court also has not disturbed the finding of the lower
appellate court on issue of notice as contemplated under
Section 80 of the CPC.
1 1986 (1) PLR 222
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14. For the aforesaid reasons we allow this appeal and set
aside the judgment and order dated 16.02.2018 passed in
R.S.A.No.1163 of 1991 and consequently the Civil Suit No.496
of 1985 stands dismissed, with no order as to costs.
.................... J.
[Uday Umesh Lalit]
.................... J.
[R. Subhash Reddy]
New Delhi
December 07, 2018
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