Punjab-Haryana High Court
Pirthi vs Surja And Ors on 16 January, 2025
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2025:PHHC:006981
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RSA-4152-2006 & RSA-4273-2006
[204] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
[1] RSA-4152-2006 (O&M)
Reserved on 04.12.02024
Pronounced on 16.01.2025
Pirthi ...Appellant
versus
Surja and others ....Respondents
[2] RSA-4273-2006 (O&M)
Surja and others ...Appellants
versus
Pirthi ....Respondent
Coram : Hon'ble Mr. Justice Pankaj Jain
Present : Mr. J.C. Malik, Advocate for the appellant in RSA-4152-2006
and for the respondent in RSA-4273-2006.
Mr. Kartar Singh Malik, Advocate for the appellants in RSA-
4273-2006 and for the respondents in RSA-4152-2006.
***
Pankaj Jain, J.
[1] These 02 cross-appeals are directed against the same judgment
and decree passed by the learned Additional District Judge, Jind whereby,
appeal preferred by the defendants against judgment and decree dated
15.09.2003 passed by the learned Civil Judge (Senior Division), Safidon
(Jind) has been partly accepted.
[2] RSA-4152-2006 is at the behest of the plaintiff and RSA-4273-
2006 has been preferred by the defendants.
[3] For convenience, parties are hereinafter referred to by their
original positions i.e. appellant as plaintiff and respondents as defendants.
[4] With the consent of the parties, RSA-4152-2006 is taken as the
lead case.
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[5] Plaintiff filed suit for declaration to the effect that he is owner
in possession of land measuring 0 Kanal and 15 marlas situated within
revenue estate of Village Ramnagar comprised in khasra No.324 (0-15).
Plaintiff claimed to have purchased 0 Kanal and 16 marlas of suit land
comprised in khasra No.324 from co-sharer Chander Singh son of Pokar
Singh vide sale deed bearing document No.423 dated 02.07.1982. Out of
total land measuring 1 kanal comprised in khasra No.324, 4 marlas land was
acquired vide Award No.313 dated 09.01.1990 by the State. Compensation
of Rs.1309-60 paise was to be awarded. The co-sharers consented that out
of compensation payable, compensation qua 0 kanal 3 marlas be awarded to
the defendants and proportionate compensation of 01 marla be paid to the
plaintiff. Plaintiff claims that it is a consequence of payment of
compensation, defendants lost their rights in the suit land and plaintiff
remained owner to the extent of 0 kanal 15 marlas. To the surprise of
plaintiff, land measuring 4 marlas out of 16 marlas now again stands
mutated in favour of the defendants.
[6] Suit was contested by the defendants. [7] Sale in favour of plaintiff by Chander Singh, co-sharer, was
admitted but only to the extent of ½ share. A counter-claim was filed by the
defendants, claiming that suit land is owned and possessed by defendants to
the extent of ½ share.
[8] Suit as well as counter-claim was put to trial, framing the
following issues:-
“1. Whether the plaintiff is entitled to the declaration as
prayed for? OPP.
2. Whether the suit of the plaintiffs is not maintainable in
the present form? OPD
3. Whether the plaintiff is estopped from filing the present
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RSA-4152-2006 & RSA-4273-2006
suit by his own act and conduct? OPD
4. Whether the suit of the plaintiff is bad for non-joinder
and mis-joinder of necessary parties? OPD.
5. Whether the suit of the plaintiff is hopelessly time
barred? ”
[9] Learned Trial Court while deciding Issue No.1 based its finding
on statement made by defendant-Zora Singh to the effect that after
acquisition of the land, the plot which remained balance be given to the
plaintiff after deducting share of the defendants and they have no objection
to the same. Plaintiff also pleaded no objection. Resultantly, the learned
Trial Court decreed the suit filed by the plaintiff.
[10] In appeal preferred by the defendants, learned Appellate Court
came to the conclusion that the land comprised in khasra No.325 ad-
measures 1 kanal. 5 marlas out of the same stands acquired. The balanced
area in khasra No.324 is 15 marlas. As per revenue record, 4 marlas of land
was owned by Surja etc. i.e. defendants 16 marlas of land was purchased by
plaintiff-Pirthi from Chander Singh. State acquired 5 marlas of land out of
joint khata and thus, the same has to be discounted proportionately qua share
of both the parties. Consequently, the learned Lower Appellate Court held
that plaintiff is entitled to be declared as owner in possession of land
measuring 0 kanal 12 marlas whereas remaining area of 3 marlas vests in
defendants.
[11] Learned counsel for the appellant-plaintiff assails the aforesaid
findings and submits that while coming on to the aforesaid conclusion,
learned Lower Appellate Court has totally ignored Exhibit P-3 whereby, all
the co-sharers made joint request before the Land Acquisition Officer, that
qua 5 marlas acquired by State, compensation of 4 marlas be paid to
defendants and acquisition qua 1 marla be paid to plaintiff by ignoring the
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RSA-4152-2006 & RSA-4273-2006aforesaid documents, the Appellate Court has passed the judgment which
has led to gross injustice to the plaintiff. Defendants have claimed
compensation of 4 marlas of land i.e. their share and now have been further
re-awarded with another 3 marlas of land.
[12] Per contra, counsel for the defendants submits that there is no
proof that the compensation qua 4 marlas of land was paid to the defendants.
From documents placed on record Exhibits P-5 & P-6, it is evident that the
compensation was paid jointly and not proportionately as claimed by the
plaintiff.
[13] I have heard counsel for the parties and have carefully gone
through records of the case.
[14] Taking up the objection raised by counsel for the respondent
with respect to scope of second appeal, it needs to be pointed out that instant
appeal is an appeal filed under Section 41 of Punjab Courts Act, 1918. It is
now settled proposition of law that in Punjab and Haryana, the second
appeals preferred are to be treated as appeal under Section 41 of the Punjab
Courts Act, 1918 and not Section 100 of the Code of Civil Procedure.
Reference can be made to a judgment of Supreme Court in the case of
Pankajakshi (dead) Through LRs and others vs. Chandrika and others,
(2016) 6 SCC 157, wherein it has been held as under:-
“xxxx xxxx xxxx xxxx
23. Shri Viswanathan also relied upon a Division Bench
judgment of this Court in Kulwant Kaur v. Gurdial Singh
Mann [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC
262] , to submit that this decision is an authority for the
proposition that there is no need to expressly refer to a local
law when the legislative intent to repeal local laws inconsistent
with the Code of Civil Procedure is otherwise clear.
24. The judgment in Kulwant Kaur case [Kulwant
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RSA-4152-2006 & RSA-4273-2006Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a
question which arose on an application of Section 41 of the
Punjab Courts Act, 1918. This section was couched in language
similar to Section 100 of the Code of Civil Procedure as it
existed before the Code of Civil Procedure (Amendment) Act,
1976, which amended Section 100 to make it more restrictive so
that a second appeal could only be filed if there was a
substantial question of law involved in the matter. The question
this Court posed before itself was whether Section 41 stood
repealed by virtue of Section 97(1) of the Code of Civil
Procedure (Amendment) Act, 1976, which reads as under :
“97. Repeal and savings.–(1) Any amendment made, or
any provision inserted in the principal Act by a State
Legislature or a High Court before the commencement of
this Act shall, except insofar as such amendment or
provision is consistent with the provisions of the
principal Act as amended by this Act, stand repealed.”
This Court concluded that Section 41 of the Punjab Courts Act
was repealed because it would amount to an amendment made
or provision inserted in the principal Act by a State Legislature.
This Court further held that, in any event, Section 41 of the
Punjab Courts Act being a law made by the Legislature of a
State is repugnant to a later law made by Parliament, namely,
Section 97(1) of the Code of Civil Procedure (Amendment) Act,
1976, and that therefore, by virtue of the operation of Article
254 of the Constitution of India, the said provision is in any
case overridden. In arriving at the aforesaid two conclusions,
this Court held [Kulwant Kaur v. Gurdial Singh Mann, (2001)
4 SCC 262.
“27. Now we proceed to examine Section 97(1) of the
Amendment Act and the amendment of Section 100 CPC
by the said 1976 Act. Through this amendment, right to
second appeal stands further restricted only to lie where,
‘the case involves a substantial question of law’. This
introduction definitely is in conflict with Section 41 of the
Punjab Act which was in pari materia with unamended
Section 100 CPC. Thus, so long there was no specific
provision to the contrary in this Code, Section 4 CPC
saved special or local law. But after it comes in conflict,
Section 4 CPC would not save, on the contrary its
language implied would make such special or local law
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inapplicable. We may examine now the submission for
the respondent based on the language of Section 100(1)
CPC even after the said amendment. The reliance is on
the following words:
‘100. Second appeal.–(1) Save as otherwise expressly
provided … by any other law for the time being in
force….’
These words existed even prior to the amendment and are
unaffected by the amendment. Thus, so far it could
legitimately be submitted that, reading this part of the
section in isolation it saves the local law. But this has to
be read with Section 97(1) of the Amendment Act, which
reads:
’97. Repeal and savings.–(1) Any amendment made, or
any provision inserted in the principal Act by a State
Legislature or a High Court before the commencement of
this Act shall, except insofar as such amendment or
provision is consistent with the provisions of the
principal Act as amended by this Act, stand repealed.’
(Noticed again for convenience.)
28. Thus, language of Section 97(1) of the Amendment
Act clearly spells out that any local law which can be
termed to be inconsistent perishes, but if it is not so, the
local law would continue to occupy its field.
29. Since Section 41 of the Punjab Act is expressly in
conflict with the amending law viz. Section 100 as
amended, it would be deemed to have been repealed.
Thus, we have no hesitation to hold that the law declared
by the Full Bench of the High Court
in Ganpat [Ganpat v. Ram Devi, AIR 1978 P&H 137]
cannot be sustained and is thus overruled.”
25. We are afraid that this judgment in Kulwant Kaur
case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC
262] does not state the law correctly on both propositions. First
and foremost, when Section 97(1) of the Code of Civil
Procedure (Amendment) Act, 1976 speaks of any amendment
made or any provision inserted in the principal Act by virtue of
a State Legislature or a High Court, the said section refers only
to amendments made and/or provisions inserted in the Code of
Civil Procedure itself and not elsewhere. This is clear from the
expression “principal Act” occurring in Section 97(1). What
Section 97(1) really does is to state that where a State
Legislature makes an amendment in the Code of Civil
Procedure, which amendment will apply only within the four
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corners of the State, being made under Schedule VII List III
Entry 13 to the Constitution of India, such amendment shall
stand repealed if it is inconsistent with the provisions of the
principal Act as amended by the Parliamentary enactment
contained in the 1976 Amendment to the Code of Civil
Procedure. This is further made clear by the reference in
Section 97(1) to a High Court. The expression “any provision
inserted in the principal Act” by a High Court has reference to
Section 122 of the Code of Civil Procedure by which High
Courts may make rules regulating their own procedure, and the
procedure of civil courts subject to their superintendence, and
may by such rules annul, alter, or add to any of the rules
contained in the First Schedule to the Code of Civil Procedure.
26. Thus, Kulwant Kaur [Kulwant Kaur v. Gurdial Singh Mann,
(2001) 4 SCC 262] decision on the application of Section 97(1)
of the Code of Civil Procedure (Amendment) Act, is not correct
in law.
27. Even the reference to Article 254 of the Constitution was
not correctly made by this Court in the said decision in Kulwant
Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4
SCC 262] . Section 41 of the Punjab Courts Act is of 1918
vintage. Obviously, therefore, it is not a law made by the
Legislature of a State after the Constitution of India has come
into force. It is a law made by a Provincial Legislature under
Section 80-A of the Government of India Act, 1915, which law
was continued, being a law in force in British India,
immediately before the commencement of the Government of
India Act, 1935, by Section 292 thereof. In turn, after the
Constitution of India came into force and, by Article 395,
repealed the Government of India Act, 1935, the Punjab Courts
Act was continued being a law in force in the territory of India
immediately before the commencement of the Constitution of
India by virtue of Article 372(1) of the Constitution of India.
This being the case, Article 254 of the Constitution of India
would have no application to such a law for the simple reason
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that it is not a law made by the Legislature of a State but is an
existing law continued by virtue of Article 372 of the
Constitution of India. If at all, it is Article 372(1) alone that
would apply to such law which is to continue in force until
altered or repealed or amended by a competent legislature or
other competent authority. We have already found that since
Section 97(1) of the Code of Civil Procedure (Amendment) Act,
1976 has no application to Section 41 of the Punjab Courts Act,
it would necessarily continue as a law in force. Shri
Viswanathan’s reliance upon this authority, therefore, does not
lead his argument any further.
xxxx xxxx xxxx"
[15] In terms of ratio of law laid down by Constitution Bench in
Pankajakshi‘s case (supra), it is evident that regular second appeal needs to
be decided as per Section 41 of Punjab Courts Act, 1918 and not in terms of
Section 100 of CPC. Meaning thereby, the test shall be as was prior to the
amendment of 1976. The appellants in order to persuade this Court to
interfere in regular second appeal, is required to show question of law even
though it may not be a substantial question of law.
[16] In terms of settled law, misreading or ignoring cogent piece of
evidence leads to perversity in the findings and the same shall be a
substantial question of law. Thus, once the Courts below have ignored the
documentary evidence brought on record by plaintiffs, the consideration
thereof would not amount to re-appreciation of evidence but would be a
ground to interfere.
[17] Defendants do not dispute document (Exhibit P-3), which reads
as under:-
" Scheme: - Ram Nagar to Hadwa Road
Hadbast No.29 31 J- 09.01.90
File No.73
Date of filing: 12/89
Date of decision: 09.01.90
Village Ramnagar (Safidon)
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RSA-4152-2006 & RSA-4273-2006
To
The L.A.O,
Hisar.
Sub: Application for making share-wise payment.
Sir,
The request is as under:-
It is submitted that the plot of applicants had come on Ram Nagar to Hadwa
Road. Out of it, Chander Singh s/o Pohkar sharer has sold his entire share to Pirthi s/o
Sudhan. The ‘Tatima’ (supplement) of it is not prepared. Out of this land, the applicants
are agreed to give the amount of money of one ‘Marla’ to Pirthi and amount of money of
remaining four ‘Marlas’ to heirs of Lahari. In such manner, we all applicants are in
agreement.
Applicants
Sd/- Hari Singh s/o Lahari (In Hindi)
Sd/- Pirthi Singh s/o Sudhan (In Hindi)
Sd/- Surja (L.T.I)
Sd/- Chander s/o Pohkar Singh (L.T.I)
Sd/- Mehar Singh (In English) and another”
[18] As per admitted position, khasra No.324 comprises of 20
marlas of land, out of which, plaintiff purchased 16 marlas and defendants
were owner to the extent of 4 marlas. 5 marlas of land was acquired. All the
parties agreed that defendants be paid compensation qua 4 marlas and the
plaintiff be paid compensation for 1 marla. The aforesaid being the
situation, defendants at this stage, cannot be allowed to re-claim their share
qua which they have already received compensation.
[19] In view of the above, suit filed by the plaintiff is ordered to be
decreed. He is held to be owner in possession of land measuring 15 marlas.
[20] RSA-4152-2006 stands allowed. RSA-4273-2006 is ordered to
be dismissed. Decree be drawn.
[21] Photocopy of this order be placed on the file of connected case.
(Pankaj Jain)
Judge
16.01.2025
'R. Sharma'
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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