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PETITIONER: DALIP CHAND & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT06/09/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 SCC  Supl.  (1) 233 JT 1995 (2)   448  1994 SCALE  (4)587

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   The  whole case appears to have gone on a wrong  track. This  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. 2.   The  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 Tribe. Thereafter, 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. Therefore,  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

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the High Court held that since there is a disputed  question of  fact,  the appropriate course will be  the  civil  suit. Accordingly the civil suit came to be filed and  declaration was given by the civil court which was reversed as  narrated hereinbefore. 3.   As 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. The  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 have stated. 4.Accordingly 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. 451