& Ors Vs. Union of India & Ors  INSC 452
(6 September 1994)
K. Ramaswamy, K. Venkatachala N. (J)
1995 SCC Supl. (1) 233 JT 1995 (2) 448 1994 SCALE (4)587
whole case appears to have gone on a wrong track.
appeal by Special Leave arises from the decree dated September 21, 1993 in Regular Second Appeal No. 530/75
dismissing the second appeal of the appellants and confirming the decree of the
additional District Judge, Jullundur in appeal
No. 173/72. The Additional District Judge reversed the decree of the Sub -
Judge First, Class, Jullundur dated August 3,1972 where in the SubJudge had
declared that the appellants were the owners of the lands in Pakistan and in
lieu of their lands in Pakistan suit lands were allotted to the appellants for
rehabilitation and issued a permanent injunction restraining the respondents
from dispossessing the appellants from the suit lands.
facts are not., in dispute. On March 12,1928,
60 bighas of land was sold by Gajinder Singh Dhillon to Santa Singh and Phagat
Singh for valuable consideration of the land situated in the village Sewai Tehsil
Ahmedpur Distt., Rahimpur Khan in Bahawalpur State which is a part of Pakistan. It is the case of the appellants
that mutation was effected on February 17,1932
in their favour. At the time of the sale Dhillon casts was non - Agricultural
it would appear that proceedings were initiated to review the mutation effected
in favour of the appellants as-owners and to treat them as mortgagees. Before
mutation could be effected the appellants who had migrated from Pakistan to India and settled down at Jullundur. In lieu of the land they had lost in Pakistan, they had applied for and were granted the suit lands. The
rehabilitation authorities are said to have secured the mutation records from Pakistan where in it later on appeared to
have been recorded that the appellants remained in those lands as mortgagees.
their allotment came to be cancelled on July 3,1961 which was challenged by the,
appellants in various proceedings and ultimately in a writ petition No. 598/64
and the High Court held that since there is a disputed question of fact, the
appropriate course will be the civil suit.
the civil suit came to be filed and declaration was given by the civil court
which was reversed as narrated hereinbefore.
regards the contesting respondent Nos. 2 to 4 are concerned admittedly they did
not make any application before the competent authority for allotment of land
in lieu of the lands they lost in Pakistan nor any allotment made in their favour more particularly in relation to
the suit lands. These facts are not in dispute. The only question which
ultimately arose and decided by the District Court and the High Court is
whether the civil court had jurisdiction to give the declaration. The Distt.
Court and the High Court were palpably wrong in holding that the Civil Court has no jurisdiction for the obvious
reason that the appellants are not claiming any declaration of their ownership
of the lands in Pakistan. What they had claimed was that
they had lost allotment of suit lands were made for the rehabilitation by the
first re- 450 spondent and that, therefore, as owners they are entitled to
maintain the allotment. The mutation proceeding secured from Pakistan would show that the respondents' predecessors,
namely, vendor-Gajinder Singh was an Agriculturist Tribe.
sale to the appellants by him was on March 12, 1928 is not in dispute. On that date
they were non-agriculturists and that, therefore, the Punjab Prohibition of
Ownership & Transfer of Lands Act, is inapplicable. The subsequent
notification that Dhillon caste is an agriculturist Tribe on May 9,1932 did not have any retrospective effect on the
alienation made as early as March, 1928. In consequence the sale of the lands
by Gajinder Singh in favour of the appellants was valid. When the sale is valid
they were the owners of the land and since that land was lost due to partition
they rightly made an application for allotment in lieu of the lost land. The
subsequent mutations effected will not have any effect on the year 1928.
Therefore, the allotment initially was rightly made. The authorities,
therefore, were not justified in cancelling the allotment on July 3 1961. Since the lands allotted to them are situated in Jullundur
Distt. within the territorial jurisdiction of the trial court, it is not in
dispute that certainly the Civil Court
can go into and in fact the trial court had gone into that aspect of the matter
and given the declaration as prayed for. The Distt. Court and the High Court,
therefore, have committed grievous error in holding that the Civil Court had no jurisdiction and the finding
that the appellants are only mortgagees, is also illegal in view of the fact we
the appeal is allowed, the judgment and decree of the High Court and the
district Court are set aside and that of the trial court is confirmed but in
the circumstances parties are directed to bear their own costs.